                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

SOMCHAI MILLER,                         NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Petitioner,                       DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D15-4374

STATE OF FLORIDA,

     Respondent.
___________________________/

Opinion filed January 20, 2016.

Petition for Belated Appeal -- Original Jurisdiction.

Somchai Miller, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney
General, Tallahassee, for Respondent.




PER CURIAM.

      Somchai Miller timely seeks a belated appeal of an order denying his second

amended motion for postconviction relief. We adopt the recommendation of the

special master to dismiss the petition for failure to set forth a prima facie basis for
relief, but do so without prejudice to Miller filing a new petition stating a legally

sufficient claim, if he is able to do so.

       Miller alleges that he retained counsel to pursue postconviction remedies, and at

some unspecified time following the denial of his second amended motion and a timely

motion for rehearing, he and his family discussed with counsel “what should be done.”

Counsel is alleged to have advised that the best course of action was to file a second or

successive motion with the trial court, advice that Miller now characterizes as “entirely

unreasonable” under the circumstances. He therefore requests that he be granted a

belated appeal.

        Florida Rule of Appellate Procedure 9.141(c)(4)(F)(i) provides in relevant part

that “a petition seeking belated appeal must state whether the petitioner requested

counsel to proceed with the appeal and the date of any such request, or if the petitioner

was misadvised as to the availability of appellate review or the status of filing a notice

of appeal.” Miller does not allege that he asked counsel to pursue an appeal, but we do

not view that omission as material because he readily concedes that as a consequence

of counsel’s allegedly erroneous advice, no such request was made. However, while

he does assert that he was misadvised as to the proper course of action following the

denial of his second amended motion, he does not allege that he was “misadvised as to

the availability of appellate review.” Absent an affirmative allegation of misadvice as

to the availability of an appeal as opposed to the advisability of pursuing an appeal, his


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present claim is legally insufficient to establish a basis for granting relief. Moreover,

by failing to specifically allege when the interaction with counsel occurred, petitioner

has failed to set forth a prima facie basis for relief since even if erroneous, the advice

to pursue another potential remedy would not have prejudiced him with respect to his

appeal rights if that advice was solicited and given after the time for appealing had

already expired.

      Accordingly, the petition seeking belated appeal is DISMISSED as legally

insufficient. This disposition is without prejudice to the filing of a new petition curing

the deficiencies identified herein and otherwise complying with the requirements of

Florida Rule of Appellate Procedure 9.141(c).

WETHERELL, MAKAR, and WINOKUR, JJ., CONCUR.




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