         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1804
                  _____________________________

TRAYVIS DEVONNE SHAW, JR.,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________

Petition for Belated Appeal—Original Jurisdiction.


                        October 31, 2018


WINOKUR, J.

     Petitioner Trayvis Shaw, Jr. seeks a belated appeal of his
2016 conviction and forty-year sentence for robbery with a
firearm. A special master recommended that Shaw be granted a
belated appeal. We disagree, and deny the petition.

     During his robbery trial, after the jury left the courtroom to
begin deliberations, Shaw fled the courthouse. When court
reconvened after the jury reached a verdict, Shaw could not be
located. The court proceeded without Shaw, and the jury found
him guilty as charged of both counts. The court then sentenced
Shaw, but did not orally pronounce that Shaw had thirty days to
appeal the judgment and sentence.
     Two and a half months later, Shaw was arrested for
absconding, and began serving his sentence. Shaw later
petitioned for a belated appeal on two grounds: first, that prior to
absconding on the day of his trial, he had directed his counsel to
appeal any adverse verdict; and second, that the trial court failed
to “advise” him of his right to appeal during sentencing.

     During a hearing on the petition, trial counsel testified that
Shaw never asked him at any time to file an appeal of a potential
conviction. The special master found Shaw’s assertion that he
asked trial counsel to file an appeal not credible, and accepted
trial counsel’s contrary testimony. However, the special master
nonetheless recommended that Shaw be granted a belated appeal
because the trial court failed to orally pronounce Shaw’s right to
appeal. 1 The special master supported this conclusion with three
reasons: first, counsel should not have consented to sentencing on
the day of trial and Shaw’s appellate rights “would have been
better protected” had he not; second, family members of Shaw
were present at trial and they were never made aware that Shaw
could appeal; and third, trial counsel could have just filed a notice
of appeal without Shaw’s consent. None of these reasons supports
belated appeal.

    Regarding the first and third reasons, neither is related to
the trial court’s failure to orally pronounce Shaw’s right to
appeal. While one can argue that trial counsel should have
attempted to postpone sentencing, this has nothing to do with the

    1 The record indicates that neither the State Attorney nor the
Attorney General filed a response to the Report and
Recommendation of the Special Master. While this lack of
response could be viewed as a concession by the State that a
belated appeal should be granted, this Court is not bound to
accept improper concessions by the State. Perry v. State, 808 So.
2d 268, 268 (Fla. 1st DCA 2002). The order from this Court
referring the matter to the special master makes clear that this
Court determines whether Shaw is entitled to a belated appeal
after considering the report and any response. As such, neither
the special master’s recommendation, nor the lack of response, is
dispositive.

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trial court failing to pronounce the right to appeal. 2 The same is
true with the special master’s third reason. The possibility that
counsel could simply have filed a notice of appeal without any
direction from Shaw has nothing to do with pronouncement of the
right to appeal; in fact, it has nothing to do with Shaw’s right to a
belated appeal at all. If the possibility that counsel could have
filed a notice of appeal without the defendant’s instruction (or
even knowledge) shows that belated appeal should be granted,
then virtually every belated-appeal petitioner would be entitled
to one.

     The special master also concluded that Shaw’s family
members present at trial were never made aware of Shaw’s
appellate rights. The implication is that family members could
have asked trial counsel to appeal if the trial court had rendered
this information. Trial counsel is not obligated to appeal merely
because family members ask him for an appeal. 3 This reason does
not support belated appeal.

     The real question presented here is whether a defendant is
entitled to a belated appeal when the court does not pronounce
the right to appeal at sentencing, when the defendant has
absconded and is not present at sentencing. Despite case law
holding that a defendant is entitled to a belated appeal if the
court fails to pronounce this right, the special master noted


    2 Nor does this fact generally entitle Shaw to a belated
appeal. The mere fact that Shaw’s counsel declined to postpone
sentencing does not demonstrate that a belated appeal is called
for.
    3  The attorney-client relationship requires that lawyers
follow their client’s directives. See R. Regulating Fla. Bar 4-1.2.
Similarly, the rules of professional conduct require a lawyer to
ensure that “there is no interference with the lawyer’s
independence of professional judgment or with the client-lawyer
relationship” and that confidentiality is maintained. R.
Regulating Fla. Bar 4-1.8(f)(2). These requirements are
inconsistent with the notion that lawyers must file a notice of
appeal at the directive of any individual aside from their client.

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correctly that such case law is factually distinguishable from
Shaw’s case because the defendants there were present to hear
the court’s advice. 4 This should have ended the inquiry.
Notification of the right to appeal is required advice to the
defendant. 5 If the defendant is absent, there is no one to advise,
and the failure to present the advice is harmless. The court is not
required to give advice to an empty chair. Granting a belated
appeal in this circumstance is elevating form over substance.
Accordingly, Shaw is not entitled to a belated appeal, and the
petition is DENIED.

LEWIS and WETHERELL, JJ., concur.



    4  See Polk v. State, 884 So. 2d 498, 499 (Fla. 5th DCA 2004)
(“[W]e grant the petition for writ of habeas corpus for belated
appeal because [the defendant] was not advised at the time of
sentencing that a thirty-day time limit existed within which an
appeal must be filed.”); Bowden v. Singletary, 805 So. 2d 812, 812
(Fla. 3d DCA 1999) (“Bowden was not informed of his right to file
a notice of appeal within thirty days of rendition, and he is
therefore entitled to a belated appeal.”); Williams v. Singletary,
723 So. 2d 923 (Fla. 3d DCA 1999) (“Because the trial court failed
to inform the defendant of her right to appeal . . . we grant the
defendant’s petition for belated appeal”) (all emphasis added).
    5 Florida Rule of Criminal Procedure 3.670 requires a trial
court when rendering a conviction to “forthwith inform the
defendant concerning the rights of appeal therefrom, including
the time allowed by law for taking an appeal.” (Emphasis added.)
Accordingly, Florida courts have emphasized that the rule
requires that defendants be “advised” or “informed” of their
appellate rights. See cases cited supra n. 4. Thus, Rule 3.670
presumes that a defendant is present during sentencing and that
is why, in these above-cited cases, the defendants were granted
their petitions for belated appeal. In this case, however, whether
the trial court orally pronounced that Shaw had thirty days to
appeal his sentence or not, the result is the same: he would not
have been informed of his appellate rights since he fled the
courtroom before sentencing.

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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Christopher J. Jones of the Law Offices of Edwards and Jones,
Gainesville, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and William P.
Cervone, State Attorney, Gainesville, for Respondent.




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