HILBERT WALKER, PETITIONER,
v.
LOUIE L. WAINWRIGHT, SECRETARY OF THE DEPARTMENT OF CORRECTIONS, RESPONDENT
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Walker petitioned for a belated appeal of his 1973 rape conviction, claiming he had requested his court-appointed attorney file an appeal that was never filed. The Florida appellate court denied the petition, holding that the doctrine of laches precluded the belated appeal given the eight-year delay and resulting prejudice to the state.
The doctrine of laches applies to preclude Walker's belated appeal. The court held that while laches does not apply to all belated appeals (as demonstrated in Bashlor v. Wainwright), it does apply where a defendant who was informed of his appellate rights fails to exercise reasonable diligence in pursuing that right, and the state demonstrates prejudice from the delay.
[1] The doctrine of laches may apply to preclude a belated appeal when the petitioner's delay in seeking the appeal causes prejudice to the state.
[2] A defendant must exercise some diligence in pursuing the right to appeal after being informed of that right.
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Join FLexlaw to unlock all legal intelligence“Some diligence on the part of a defendant to pursue this right, upon being informed of it, is required.”
Establishes the standard that defendants must exercise reasonable diligence in pursuing appellate rights once informed of them.
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Join FLexlaw to unlock all legal intelligenceWalker was convicted of rape in 1973. He allegedly requested his court-appointed attorney to file an appeal shortly after conviction, but the appeal w…
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PER CURIAM.
Petitioner seeks a writ of habeas corpus for a belated appeal1 from his rape conviction in 1973. For the reasons outlined below, we decline to grant petitioner a belated appeal. Accordingly, the petition is denied.
Subsequent to his conviction,' petitioner allegedly requested his court-appointed at torney to file an appeal.2 It was not filed. Petitioner apparently took no further action regarding an appeal until he filed the instant petition, eight years after his conviction. The state indicates that petitioner’s delay in seeking his belated appeal has precluded it from being able to adequately respond to the allegations in the petition. Petitioner relies on Bashlor v. Wainwright, 374 So. 2d 546 (Fla. 1st DCA 1979), where a convict waited 28 years to petition for a belated appeal and this Court held that the doctrine of laches did not apply to preclude an appeal. However, in that case, the defendant had been convicted prior to the United States Supreme Court’s decision recognizing the right to appointed counsel on appeal in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and the Florida Supreme Court’s decision that Douglas should be applied retroactively in Baggett v. Wainwright, 229 So. 2d 239 (Fla. 1970). Further, the state made no assertion that any prejudice it would suffer due to loss of witnesses, counsel, judges, record and other evidence, had increased since the time this state recognized Bashior’s claim as actionable. In Mr. Walker’s case, the state asserts prejudice to it due to Mr. Walker’s delay.
In this case, the doctrine of laches applies to preclude this belated appeal. Broxson v. Wainwright, 271 So. 2d 478 (Fla. 1st DCA 1973); and Remp v. State, 248 So. 2d 677 (Fla. 1st DCA 1970). Petitioner has attached pages from his trial transcript showing he had been advised of his right to appeal and to have counsel appointed for this purpose, should he be indigent. Some diligence on the part of a defendant to pursue this right, upon being informed of it, is required. Babson v. Wainwright, 376 So. 2d 1187 (Fla. 5th DCA 1979); and Cooper v. State, 258 So. 2d 464 (Fla. 1st DCA 1972). The prejudice to the state caused by petitioner’s unnecessary delay in raising his claim far outweighs any alleged denial of a constitutional right in this case.
Accordingly, the petition for writ of ha-beas corpus for a belated appeal is denied.
SHAW, WENTWORTH and THOMPSON, JJ., concur. . See Baggett v. Wainwright, 229 So. 2d 239 (Fla.1970); and Hoilingshead v. Wainwright, 194 So. 2d 577 (Fla.1967).
. Petitioner has attached a copy of a letter, allegedly written to his attorney in 1973, shortly after his conviction, requesting a copy of the notice of appeal filed in his case. The state responded that petitioner’s attorney has no recollection of whether petitioner asked him to file an appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Despres v. State, 427 So. 2d 257 (Fla. 5th DCA 1983)…his case, inasmuch as the Petitioner made no effort to appeal until July 7, 1975, a period of more than 14 months after the sentence was imposed. In a proper case, laches may bar the defendant’s right to seek a belated appeal. Walker v. Wainwright, 411 So. 2d 1038 (Fla. 1st DCA 1982); Remp v. State, 248 So. 2d 677 (Fla. 1st DCA 1970). However, the application of the doctrine of lach-es requires the finding of two elements: inordinate delay on the part of the person seeking to assert the right; and prejudice t…
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Strong v. State, 851 So. 2d 758 (Fla. 2d DCA 2003)…era prior to the promulgation of a rule of procedure setting specific limits. Based upon these cases, we conclude that a request for a belated postconviction motion can be denied as untimely only if it is barred by laches. Cf. Walker v. Wainwright, 411 So. 2d 1038 (Fla. 1st DCA 1982) (recognizing, prior to enactment of specific rule related to filing belated appeal, that belated appeal could be barred by laches); Nava v. State, 652 So. 2d 1264 (Fla. 4th DCA 1995) (same). To establish laches, however, the burd…1 / 2
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In the Interest of E.H., 591 So. 2d 1097 (Fla. 1st DCA 1992)…if there were a right to a belated appeal in such cases it might be inappropriate to grant the parent a belated appeal, such as where the child has already been adopted. Cf. Despres v. State, 427 So. 2d 257 (Fla. 5th DCA 1983); Walker v. Wainwright, 411 So. 2d 1038 (Fla. 1st DCA 1982). (In a proper case laches may bar the right to a belated appeal). In contrast, if the order terminating parental rights is wrong, why should the child be deprived of parental association because the parent’s counsel was ineffecti…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Douglas v. California, 372 U.S. 353 (U.S. 1963)
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)
- Remp v. State, 248 So. 2d 677 (Fla. 1st DCA 1970)
- Sinclair Ref. Co. v. Ada Smith, 248 So. 2d 677 (Fla. 1st DCA 1971)
- Bashlor v. Louie L. Wainwright, 374 So. 2d 546 (Fla. 1st DCA 1979)
- Babson v. Louie L. Wainwright, 376 So. 2d 1187 (Fla. 5th DCA 1979)
- Cooper v. State, 258 So. 2d 464 (Fla. 1st DCA 1972)
- Broxson v. Louie L. Wainwright, 271 So. 2d 478 (Fla. 1st DCA 1973)