Opinion
CR-90-966.
May 1, 1992.
Appeal from the Circuit Court, Montgomery County.
Donald Shephard, pro se.
James H. Evans, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.
ON RETURN TO REMAND
We remanded this cause for the trial court to determine whether a prior Rule 20, A.R.Cr.P.Temp., petition filed by the appellant had been adjudicated on its merits 587 So.2d 1105. Finding no evidence that a hearing on the merits had been held, the trial court proceeded, pursuant to our instructions, to hold an evidentiary hearing on the merits of the present Rule 20, A.R.Cr.P.Temp., petition.
The sole issue presented by the petition is whether the appellant is entitled to an out-of-time appeal because, he says, his failure to file a timely appeal was not his fault. The appellant contends that he was not advised of his right to appeal on the day of sentencing; that, after the time for filing an appeal had run, he notified his counsel of his desire to appeal, and that he was told that the time for filing an appeal had already elapsed. However, according to the transcript of the sentencing hearing, which was introduced into evidence at the hearing on the petition, the trial court asked the defendant during the proceeding, "Now, you understand you have a right to appeal?" Further, the trial court's file contains a document filed by defendant's counsel, stating that he apprised the defendant that he would have no right to appeal on the merits following a guilty plea, and that, nevertheless, after the time for filing an appeal had run, the defendant notified counsel that he wished to appeal.
Based on the evidence presented at the evidentiary hearing on remand, the trial court properly denied the appellant's petition.
AFFIRMED.
All the Judges concur.