Marchetti v. State

PER CURIAM. Defendant Dino Marchetti’s motion for belated appeal is granted and the order under review reversed. The state concedes that the defendant is entitled to a belated appeal of the trial court’s order of May 15, 1995, which denied the defendant’s motion for post-conviction relief. The order did not give the defendant the required notice that he had a right to appeal that had to be exercised within thirty days. Fla.R.Crim.P. 3.850(g); State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50 (Fla.1975); Nava v. State, 652 So.2d 1264 (Fla. 4th DCA 1995). Further, a prisoner’s presence at a hearing on a motion for post-conviction relief is within the discretion of the trial court “except when evidence is presented and the prisoner is not represented by counsel.” Clark v. State, 491 So.2d 545 (Fla.1986). Here, the trial court conducted an evidentiary hearing on the defendant’s motion for post-conviction relief without the defendant or anyone representing him being present. Thus, the defendant is entitled to a new hearing on his motion, in the presence of the defendant and/or his counsel. Accordingly, the motion for belated appeal is granted. The order under review is reversed, and the cause remanded.