Third District Court of Appeal
State of Florida
Opinion filed November 1, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2044
Lower Tribunal No. 06-37562
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Christopher Santiago,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Petition for Belated Appeal
Christopher Santiago, in proper person.
Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant
Attorney General, for appellee.
Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
PER CURIAM.
On March 4, 2015, after petitioner Christopher Santiago’s probation was
revoked, the trial court sentenced him to fifteen years imprisonment. Santiago
filed a petition with this court, pursuant to Florida Rule of Appellate Procedure
9.141(c), seeking a belated appeal of this sentence.
In his petition, Santiago contends that he requested his trial counsel to file an
appeal of the sentence, and that, despite agreeing to the request, trial counsel failed
to do so. We ordered the state to respond to the petition, and in its response, the
state wrote that it spoke with trial counsel, who gave his version of the post-
sentence conversation with Santiago. When an appeal of the probation sentence
came up, trial counsel said, Santiago was told that he could appeal but trial counsel
(who was privately retained) would not handle it and Santiago would have to find
another attorney.
The state’s response raises a good faith basis to dispute Santiago’s assertion
that he requested his trial counsel to file an appeal on his behalf, and his trial
counsel agreed to do it. See Brownlee v. State, 223 So. 3d 1064, 1065 (Fla. 3d
DCA 2017) (finding the state “had raised a good faith basis to dispute” the
defendant’s belated appeal petition where the state’s response “informed this Court
that it contacted Brownlee’s defense counsel who recalled that he advised
Brownlee about his appellate rights in light of his plea bargain”); Parrish v. State,
201 So. 3d 145, 145-46 (Fla. 3d DCA 2016) (finding the state “raised a good faith
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basis to dispute” the defendant’s belated appeal petition where the state “appended
an e-mail to its Response . . . in which trial counsel disputes Parrish’s assertion that
counsel was requested to file a notice of appeal”). We, therefore, appoint the judge
presiding in criminal division ten of the Miami-Dade circuit court as a
commissioner to hold an evidentiary hearing and determine the limited, disputed
issues of fact upon which Santiago’s petition turns: whether Santiago instructed
his trial counsel to file a notice of appeal and trial counsel agreed to file one. See
Fla. R. App. P. 9.140 cmt. n. (1996 amend.) (“In the rare case where entitlement to
belated appeal depends on a determination of disputed facts, the appellate courts
may appoint a commissioner to make a report and recommendation.”). In order
to allow the division judge the opportunity to conduct an evidentiary hearing, make
the required determination, and transmit the report of such determination to this
court, the proceedings on Santiago’s petition shall be held in abeyance for sixty
days from the date of this order.
Commissioner appointed; petition held in abeyance.
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