CARLOS FORD, PETITIONER,
v.
LOUIS L. WAINWRIGHT, RESPONDENT
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Ford seeks habeas corpus relief for a belated appeal, claiming his retained counsel failed to file a notice of appeal despite being asked to do so and falsely told him the judge had denied the appeal. The court held that ineffective assistance of counsel claims apply equally to retained and appointed counsel, and remanded for a hearing to determine whether counsel's failure constitutes ineffective assistance depriving Ford of his right to appeal.
A defendant represented by privately retained counsel may seek collateral relief based on ineffective assistance of counsel under the same standards as those represented by court-appointed counsel. Failure to file a timely appeal when requested by the client constitutes ineffective assistance of counsel. A showing of such ineffective assistance that results in denial of the right to appeal mandates granting a belated appeal.
[1] Failure to file a notice of appeal when timely requested by a client constitutes ineffective assistance of counsel.
[2] There is no distinction between court-appointed and privately retained counsel for purposes of seeking relief based on ineffective assistance of counsel.
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Join FLexlaw to unlock all legal intelligence“Failure to file an appeal of a criminal conviction, when timely requested by a client, constitutes ineffective assistance of counsel.”
Establishes the core legal principle that counsel's failure to file a requested appeal is ineffective assistance.
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Join FLexlaw to unlock all legal intelligenceFord was represented by privately retained counsel at sentencing and during the appeal stage of his criminal conviction. His family and friends retain…
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PER CURIAM.
Petitioner seeks a writ of habeas corpus for a belated appeal, pursuant to Hollingshead v. Wainwright, 194 So. 2d 577 (Fla.1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968). He alleges that his family and friends retained private counsel to represent him at the sentencing and appeal stages of his criminal conviction, and that his retained attorney failed to file a notice of appeal, yet informed petitioner that the judge had denied his appeal. He claims he is now indigent for purposes of having counsel appointed to represent him on appeal. Respondent answered our show cause order, saying that the retained attorney denied having been requested to file an appeal for petitioner. Respondent asked that the case be remanded to the trial court so that it may conduct an evidentiary hearing to resolve the fact dispute. However, we denied the petition on the basis that one cannot be deprived of his right to appeal by state action, as required by Hoffingshead, supra, when he was represented by privately retained counsel.
Upon reviewing our decision pursuant to this motion for rehearing, we withdraw our denial of the petition and remand the case to the trial court for an evidentiary hearing on the above-mentioned fact dispute.
Failure to file an appeal of a criminal conviction, when timely requested by a client, constitutes ineffective assistance of counsel. See Rule 9.140(b)(3), Fla.R.App.P., (requiring counsel to either file a motion to withdraw or file a notice of appeal, prior to withdrawal from representation of a client). The United States Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), held that for purposes of seeking relief pursuant to a claim of ineffective assistance of counsel, there is no difference between court appointed and privately retained counsel. Relying on Cuyler, supra, to recognize the right to seek collateral relief based on ineffective assistance of counsel, our chief judge, speaking for the court in Spencer v. State, 389 So. 2d 652, 653 (Fla. 1st DCA 1980), said, “... [T]he United States Supreme Court squarely held that a criminal prosecution is itself sufficient state action to engage the constitutional right to counsel, and that, when a question of ineffective assistance of counsel is presented, there is no distinction between state-provided and retained counsel.” See also, Vagner v. Wainwright, 398 So. 2d 448 (Fla.1981); Edwards v. State, 393 So. 2d 597 (Fla. 3rd DCA 1981); Kniebes v. State, 391 So. 2d 743, 744 (Fla. 4th DCA 1980); Blatch v. State, 389 So. 2d 669 (Fla. 3rd DCA 1980); Presley v. State, 388 So. 2d 1385 (Fla. 2nd DCA 1980); Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980); Chambers v. State, 388 So. 2d 1259 (Fla. 2nd DCA 1980); and State v. Dukes, 388 So. 2d 651 (Fla. 2nd DCA 1980).
While the above-cited cases apply to collateral attacks on a conviction which, if found to be meritorious, require conducting a new trial, we find that a showing of ineffective assistance of counsel that results in denial of one’s right to appeal, mandates the granting of a belated appeal. Perez v. Wainwright, 594 F. 2d 159 (5th Cir. 1979), vacated and remanded, 447 U.S. 932, 100 S.Ct. 3032, 65 L.Ed.2d 1127 (1980), on remand, 627 F. 2d 762 (5th Cir. 1980), on rehearing, 640 F. 2d 596, 598 (5th Cir. 1981) (holding that when a lawyer, be he privately retained or court appointed, does not perform his promise to his client that an appeal will be taken, the client is entitled to a belated appeal). See also, Torna v. Wainwright, 649 F. 2d 290 (5th Cir. 1981), U. S. appeal pending.
We therefore appoint the Honorable John Crews, Circuit Judge for the Eighth Judicial Circuit, to conduct an evidentiary hearing to determine whether counsel’s failure to file an appeal of petitioner’s criminal conviction constitutes ineffective assistance of counsel depriving petitioner of his fundamental right to appeal. If the determination is affirmative, the fact finder should then determine whether petitioner is indigent for purposes of appointing a public defender to represent him on appeal.
ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.
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Ford v. Wainwright, 425 So. 2d 1189 (Fla. 1st DCA 1983)…PER CURIAM. Pursuant to the opinion of this court rendered June 4,1982, 415 So. 2d 76, an eviden-tiary hearing was conducted before the Honorable John J. Crews, as court-appointed commissioner, for the purpose of making findings of facts and conclusions of law, together with recommendations on the question of whether or not attorney…
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Avera v. State, 417 So. 2d 804 (Fla. 5th DCA 1982)…ice of appeal on the grounds that such failure indicates ineffective assistance of counsel. The reasoning is that only the lawyer is to blame and the defendant should not suffer just because he retained an incompetent lawyer. See Ford v. Wainwright, 415 So. 2d 76 (Fla. 1st DCA 1982). Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969), Hollingshead v. Wainwright, 194 So. 2d 577 (Fla.1967) and a multitude of other cases establish and maintain the rule that if a criminal defendant is denied the right to appeal b…
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Smith v. State, 416 So. 2d 510 (Fla. 5th DCA 1982)…meritorious appeal because of his attorney’s carelessness is grossly unfair. The failure of an attorney to file the requisite notice of appeal when timely requested by the defendant constitutes ineffective assistance of counsel. Ford v. Wainwright, 415 So. 2d 76 (Fla. 1st DCA 1982). The consequences of the attorney’s negligence should fall where it belongs, on the shoulders of the offending attorney, and not on the defendant who played no part in the problem. I suggest that the supreme court amend Florida…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980)
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)
- Clement Lemmon Edwards v. State, 393 So. 2d 597 (Fla. 3d DCA 1981)
- Blatch v. State, 389 So. 2d 669 (Fla. 3d DCA 1980)
- Vagner v. Louie L. Wainwright, 398 So. 2d 448 (Fla. 1981)
- Perez v. Louie L. Wainwright, 640 F.2d 596 (5th Cir. 1981)
- Lucion Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980)
- Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980)
- Laurel v. United States Court of Appeals for the Fifth Cir., 447 U.S. 932 (U.S. 1980)
- Torna v. Louie L. Wainwright, 649 F.2d 290 (5th Cir. 1981)