          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D19-1010
                  _____________________________

TROY LAMAR PELHAM,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition for Belated Appeal—Original Jurisdiction.

                       September 25, 2019


PER CURIAM.

     Troy Lamar Pelham, seeks a belated appeal of a judgment and
sentence rendered on February 4, 2019. Pelham’s trial counsel
filed the petition, alleging that on March 15, 2019, she received a
letter from Pelham, dated February 14, 2019, requesting an appeal
be filed on his behalf. At the time the letter was allegedly sent,
Pelham was incarcerated at the Santa Rosa County Jail.

     Because there was not enough information in the petition to
verify whether Pelham timely sent the letter requesting an appeal
be filed, we issued an order, pursuant to Staley v. State, 12 So. 3d
778 (Fla. 1st DCA 2009), relinquishing jurisdiction for
appointment of a special master for the purpose of issuing an order
to show cause directed to the State Attorney, conducting an
evidentiary hearing if warranted by the State’s response, and
issuing a written report and recommendation concerning Pelham’s
entitlement to a belated appeal.

    A special master was appointed and directed the State to show
cause why Pelham should not receive a belated appeal. The State
responded that it has no objection to the petition being granted.
Based on that position, the special master found that the State
Attorney “indicat[ed] that it had no objection to the [petition] being
granted.” For that reason the special master declined to hold an
evidentiary hearing and issued the report recommending the
belated appeal be granted.

     This Court’s appellate jurisdiction is invoked by a notice of
appeal within 30 days of rendition of the order to be reviewed. Fla.
R. App. P. 9.110(b). The failure to file a timely appeal deprives this
Court of jurisdiction. See David M. Dresdner, M.D., P.A. v. Charter
Oak Fire Ins. Co., 972 So. 2d 275, 278 (Fla. 2d DCA 2008) (quoting
First Nat’l Bank in Fort Myers v. Fla. Unemployment Appeals
Comm’n, 461 So. 2d 208, 208 (Fla. 1st DCA 1984)) (noting that
failure to file a timely notice of appeal “constitutes an irremediable
jurisdictional defect”).

    We can only permit an appeal in a criminal case outside of
time permitted in rule 9.110(b) by granting a petition for belated
appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).
Rule 9.141(c)(4)(F) sets forth specific bases that must be alleged to
support a belated appeal.

     This is why we employ the procedures set forth in Staley. This
Court relinquished jurisdiction to the trial court so it could
ascertain whether Pelham’s petition satisfied the requirements of
rule 9.141(c) and if the State had any objection to the facts alleged
in the petition in order for this Court to exercise its independent
duty to determine if it had jurisdiction. The State, however, cannot
consent to our jurisdiction over Pelham’s appeal. See Wade v. Fla.
Dep’t of Children & Families, 57 So. 3d 869, 870 (Fla. 1st DCA
2011); see also Philip J. Padovano, Fla. Appellate Practice, § 1.5
(2018 ed.) (noting that “[t]he appellate court has an independent
duty to determine the existence of jurisdiction in every case and to
dismiss a case that is not within its jurisdiction”). For this reason,
it is generally insufficient for a special master to recommend a

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belated appeal based simply on its finding the State does not object
to the petition.

     Certainly, a special master can look at the pertinent facts and
conclude that the lack of State’s objection is an admission to the
facts as alleged in a defendant’s petition. A special master,
however, should make this determination evident in its report and
recommendation. The State’s response here stated that “based
upon the sworn representations of opposing counsel in the
Amended Petition for Belated Appeal, the State does not object to
the Court granting [Pelham] a belated appeal.” In this case, we
construe the lack of objection as an admission of the allegations in
the petition.

     We, therefore, grant Pelham’s petition for belated appeal.
Pelham shall be allowed a belated appeal from the judgment and
sentence in Santa Rosa County Circuit Court case number 2017-
CF-0171. A copy of this opinion shall be provided to the clerk of the
circuit court for treatment as the notice of appeal. See Fla. R. App.
P. 9.141(c)(6)(D). If Pelham qualifies for appointed counsel, the
trial court shall appoint counsel to represent Pelham on appeal.

    GRANTED.

RAY, C.J., and BILBREY and WINOKUR, JJ., concur.

                  _____________________________

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


Bruce A. Miller, Public Defender, and Julie M. Edwards, Assistant
Public Defender, Milton, for Petitioner.

Ashley Moody, Attorney General, Tallahassee; William Eddins,
State Attorney, and Patrick King, Assistant State Attorney,
Milton, for Respondent.


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