       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 10, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-176
                        Lower Tribunal Nos. 09-10800A
                                 & 09-10802
                             ________________


                              Cedric Brownlee,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.



      A Case of Original Jurisdiction — Petition for Belated Appeal.

      Cedric Brownlee, in proper person.

      Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant
Attorney General, for respondent.


Before SUAREZ, C.J., and LAGOA and SCALES, JJ.

      SCALES, J.
      In May of 2015, Petitioner Cedric Brownlee entered a guilty plea to the

following charges: (1) second degree murder, (2) robbery with a firearm, and (3)

carrying a concealed weapon by a convicted felon. The trial court sentenced

Brownlee to thirty-five years in prison, followed by five years of probation.

      Brownlee filed a petition with this Court, pursuant to rule 9.141(c) of the

Florida Rules of Appellate Procedure, seeking a belated appeal. In his petition,

Brownlee asserts that he requested his defense counsel to appeal the trial court’s

denial of his motion to suppress evidence, which had preceded his guilty plea.

Brownlee asserts that he made this request of defense counsel both before and after

the guilty plea, and that his guilty plea was premised upon Brownlee preserving his

right to appeal the suppression issue. Such appeal did not occur.

      We ordered the State to respond to the instant petition. In its Response, the

State argues that Brownlee is not entitled to a belated appeal because the trial

court’s denial of the motion to suppress did not trigger a dispositive, appealable

issue. Further, the State 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. Accordingly, the State has raised a good faith basis to dispute

Brownlee’s assertion that his defense counsel failed to file an appeal on his behalf.

Brownlee’s entitlement to a belated appeal depends upon a determination of this

disputed fact.



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      Therefore, we appoint a commissioner, Judge Ellen Venzer (the trial judge

below), to hold an evidentiary hearing and determine the limited, disputed issue of

fact upon which Brownlee’s petition turns: whether Brownlee instructed his

defense counsel to file a notice of appeal. See State v. Trowell, 739 So. 2d 77 (Fla.

1999).

      In order to allow Judge Venzer the opportunity to conduct an evidentiary

hearing, and transmit a report of such determination to this Court, the proceedings

on the instant petition shall be held in abeyance for a period of sixty days from the

date of this order.

      Commissioner appointed; petition held in abeyance.




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