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Gould v. State

The trial court did not abuse its discretion in denying the defendant's motion for an out-of-time appeal based on ineffective assistance of counsel, where trial counsel's testimony established that the defendant was informed of his right to appeal the trial court's probation revocation order and voluntarily waived that right.

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Carl Gould, proceeding pro se, appeals the trial court’s order denying his motion for an out-of-time appeal. We discern no error and affirm. The record shows that on September 26, 2003, Gould entered a negotiated plea of guilty to one count of sexual exploitation of children and one count of recidivism. Gould was sentenced to ten years, with one year to serve and the remainder on probation. A petition to revoke Gould’s probation was filed on November 3, 2009; and after a hearing, the trial court revoked the balance of the probation. Through counsel, Gould then filed a motion for new trial and a motion for reconsideration. After a hearing, the trial court on August 12, 2010, denied the motion for new trial but reduced the amount of time during which Gould’s probation was revoked to a period of two years. In May 2011, Gould, proceeding pro se, filed a motion for an out-of-time appeal in order to challenge this probation revocation order. After a hearing, the trial court denied Gould’s motion for an out-of-time appeal in an order entered June 10, 2011. This June 2011 order is the subject matter of the current appeal.

1. Gould first argues that the trial court abused its discretion in denying his motion for an out-of-time appeal. The grant or denial or a motion for an out-of-time appeal is within the discretion of the trial court, and its decision will not be reversed absent an abuse of such discretion.1

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