SUE ANN WILLIS, PETITIONER,
v.
LOUIS WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, STATE OF FLORIDA, RESPONDENT
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Willis seeks delayed appellate review via habeas corpus to challenge the trial court's denial of her motion to dismiss an information, after she entered a nolo contendere plea and received probation with adjudication withheld. The court denies relief because Willis failed to reserve her right to appeal the dismissal motion at trial, which constitutes a procedural waiver.
The court denies the petition for delayed appellate review because Willis failed to make a contemporaneous reservation of her right to appeal the denial of the motion to dismiss, which constitutes a waiver under Florida Criminal Procedure Rule 3.172(c)(iv). Although the court is bound by precedent treating public defender error as state action, the absence of a reservation prevents appellate review, and collateral attack remains the proper remedy.
[1] A defendant who pleads nolo contendere after the denial of a motion to dismiss waives the right to appeal the denial of that motion unless the right to appeal was express…
[2] A defendant may seek delayed appellate review through a petition for writ of habeas corpus when appellate counsel's error prevented a timely appeal.
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Join FLexlaw to unlock all legal intelligence“Although we might well rule differently if we had the option, we are bound by these decisions. We are thus required to disregard counsel's error which is so willingly confessed.”
The court explains that precedent requires it to treat public defender error as state action, but this does not overcome the procedural bar.
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Join FLexlaw to unlock all legal intelligenceWillis pled nolo contendere to an information after the trial court denied her motion to dismiss. Adjudication was withheld and she was placed on prob…
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PER CURIAM.
In this petition for writ of habeas corpus for delayed appellate review, the defendant through her counsel, the Public Defender, seeks to attack the denial of her motion to dismiss an information to which she later pled nolo contendere.
After the nolo contendere plea, adjudication was withheld and the defendant was placed on probation. Her Public Defender filed an improper appeal from an oral order by the trial court on the motion to dismiss. This appeal was dismissed by this Court on motion of the State and a motion by defense counsel to reinstate the appeal was also denied. Defense counsel now seeks delayed appellate review and asserts that it was his error that this notice of appeal was incorrectly filed and that he intended to appeal the order of probation and assert denial of the motion to dismiss as error. Counsel states that this was due to inadvertence on counsel’s part. In accordance with Hollingshead v. Wainwright, 194 So. 2d 577 (Fla.1967), and Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969), counsel states that it was his mistake and that this constitutes State action since he is a State-provided Public Defender. Although we might well rule differently if we had the option, we are bound by these decisions. We are thus required to disregard counsel’s error which is so willingly confessed. However, we note in reviewing the record that the court minutes relied upon by defendant show there was absolutely no reservation of the right to appeal the denial of the defendant’s motion to dismiss. This absence of a reservation constitutes a waiver pursuant to Fla.R.Crim.P. 3.172(c)(iv) and the cases construing this rule. Wasil v. State, 318 So. 2d 544 (Fla. 1st DCA 1975). Section 924.06(3) Fla.Stat. (1977) provides that in such situations the defendant shall obtain review by means of collateral attack.
The petition for writ of habeas corpus for delayed appellate review is denied because the documents supporting it do not show a reservation of the right to appeal. We are, of course, mindful that defense counsel in all probability will file another affidavit and another petition for habeas corpus asserting this to be just another one of his mistakes.
PETITION DENIED.
LETTS, MOORE and BERANEK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Meyer v. State, 415 So. 2d 70 (Fla. 5th DCA 1982)…te, 233 So. 2d 173 (Fla. 3d DCA 1970). Other cases have recognized the right, although denying the petition for relief based on the particular facts of the case. See, e.g., Johnson v. State, 390 So. 2d 1234 (Fla. 5th DCA 1980); Willis v. Wainwright, 375 So. 2d 3 (Fla. 4th DCA 1979); see also Pressley v. Wainwright, 367 So. 2d 222 (Fla.1979) (England, J., dissenting); cf. Mercer v. Wainwright, 376 So. 2d 377 (Fla.1979) (Adkins, J., dissenting). . “In both Burton [v. Wilmington Parking Authority, 365 U.S. 71…
Authorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)
- Wasil v. State, 318 So. 2d 544 (Fla. 1st DCA 1975)