NORMAN HENRY DESPRES A/K/A JOSEPH COZZI, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Despres sought a belated appeal of his robbery conviction more than 14 months after sentencing, alleging his public defender failed to file an appeal despite his request. The court appointed a Commissioner to investigate and, finding no prejudice to the State despite trial counsel's negligence in failing to readvise defendant of appeal rights, held that the defense of laches did not bar the belated appeal.
The defendant's petition for a belated appeal is denied, but not because laches bars the appeal. Although trial counsel's failure to confer with and readvise the defendant of his appeal rights constituted negligence, laches does not apply because the defendant failed to demonstrate prejudice to the State—the second required element for laches.
[1] Laches may bar a defendant's right to seek a belated appeal, but requires a finding of inordinate delay and prejudice to the state.
[2] A trial attorney has an affirmative obligation to confer with a client after sentencing to advise them of their appellate rights.
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Join FLexlaw to unlock all legal intelligence“the trial attorney has an affirmative obligation to confer with his client during that 30-day period and readvise him of his rights and to make a determination as to whether or not he wishes to appeal. This was not done in this case and in this Commissioner's opinion, is negligence.”
Establishes the standard of care required of trial counsel regarding post-sentencing advisory duties
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Join FLexlaw to unlock all legal intelligenceDespres was convicted of robbery by jury verdict and sentenced to life on May 1, 1974. He was advised in open court of his right to appeal. His trial …
The full statement of facts, procedural history, and disposition for this case are member content.
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SHARP, Judge.
Despres seeks a belated review of his robbery conviction. He alleged that he asked his public defender to appeal the conviction immediately after the jury returned with a guilty verdict, but no appeal was taken. Some fourteen months after a life sentence was imposed on Despres in this case, he filed a 3.850 motion1 with the trial court to obtain a belated appeal. The lower court summarily denied his motion. We elected to treat Despres’s pro se pleading as a petition for habeas corpus to secure a belated appeal.2
Because we were concerned Despres might have been denied his right of appeal by failure of the public defender to pursue an appeal on his behalf upon his timely request, we appointed a Commissioner to conduct a hearing on these issues. The Commissioner’s findings included the following:
1.The Defendant was sentenced on May 1. 1974, and advised in open court of his right to appeal.
2. The Defendant never timely requested that an Appeal be filed. The testimony presented to the Commissioner is in conflict on this issue, however the Commissioner finds the testimony of the Petitioner and his witnesses not credible and therefore finds that Petitioner did not timely request an appeal be taken.
3. The Defendant was sentenced immediately after the jury conviction and his trial attorney, Assistant Public Defender, Hale Stancil, after expressing his condolences to the Petitioner, never again communicated with the Petitioner for any purpose.
4. The Petitioner had previously been sentenced to one hundred and five years in the state prison and the life sentence imposed in this case was consecutive to that one hundred and five years.
5. That the trial attorney has an affirmative obligation to confer with his client during that 30-day period and readvise him of his rights and to make a determination as to whether or not he wishes to appeal. This was not done in this case and in this Commissioner’s opinion, is negligence.
6. The defense of laches does apply in this 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 laches requires the finding of two elements: inordinate delay on the part of the person seeking to assert the right; and prejudice to the State. Blatch v. State, 389 So. 2d 669 (Fla. 3d DCA 1980); Remp, 248 So. 2d 677. Since the second element was not found by the Commissioner, nor does the record afford a basis for such a finding, Despres’s appeal rights are not barred by laches.
No Florida appellate case has yet held, so far as we have discovered, that trial counsel’s failure to advise a defendant of his right to appeal constitutes “state action” within the context of Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969), and Hollingshead v. Wainwright, 194 So. 2d 577 (Fla.1967). This may be because Florida Rule of Criminal Procedure 3.670 requires the trial judge to advise a defendant of his right to appeal. Appellant’s position on this issue might be persuasive if it could be shown that neither the trial judge nor appellant’s counsel advised appellant of his right to appeal, so that through complete ignorance of his rights he never requested his counsel to appeal his conviction.3 But this is not the case here, so we need not address that point.
At the hearing before the Commissioner, Despres testified the trial judge advised him of his right to appeal. The Commissioner, however, resolved conflicting testimony on the issue of whether Despres asked his attorney to appeal. His findings are binding on us. Cuna Mutual Insurance Society v. Adamides, 334 So. 2d 75 (Fla. 3d DCA 1976); Biscayne Manufacturing Corp. v. Sandav Corp., 323 So. 2d 315 (Fla. 3d DCA 1975). For the reasons stated herein, Despres’s petition for habeas corpus to obtain a belated appeal is
DENIED.
ORFINGER, C.J., and FRANK D. UP-CHURCH, J., concur. . Fla.R.Crim.P. 3.850.
. Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969); Fla.R.App.P. 9.040(b) & (c).
.But see Nichols v. Wainwright, 243 So. 2d 430 (Fla. 2d DCA 1971).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Simmons v. State, 485 So. 2d 475 (Fla. 2d DCA 1986)…The doctrine of laches requires proof of two elements: First, there must be inordinate delay on the part of the moving party, and second, the state must be prejudiced by this delay. Remp v. State, 248 So. 2d 677 (Fla. 1st DCA 1970); Depres v. State, 427 So. 2d 257 (Fla. 5th DCA 1988). We caution that the mere passage of time, standing alone, is not sufficient evidence of prejudice. Weir v. State, supra. Notably, at the time Simmons entered his plea and for many years thereafter the effectiveness of private co…
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State v. Caudle, 504 So. 2d 419 (Fla. 5th DCA 1987)…urt remanded for a hearing on the validity of a prior conviction and stated the procedure to be followed "in the event appellant proves the alleged constitutional infirmity.") . Tedder v. State, 495 So. 2d 276 (Fla. 5th DCA 1986); Despres v. State, 427 So. 2d 257 (Fla. 5th DCA 1983).…
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Brooks v. State, 816 So. 2d 199 (Fla. 1st DCA 2002)…taking an appeal was deemed an inappropriate inquiry; the only pertinent issue for resolution, as modified by case law following Baggett, see footnote 3, infra, was whether the defendant had timely made a request for an appeal. See Despres v. State, 427 So. 2d 257 (Fla. 5th DCA 1983). As had the Florida courts, federal case law initially limited the issue of a defendant’s entitlement to a delayed appeal to a determination of whether a communication for same had been timely conveyed. With the passage of years…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)
- Blatch v. State, 389 So. 2d 669 (Fla. 3d DCA 1980)
- Cuna Mut. Ins. Soc'y v. Adamides, 334 So. 2d 75 (Fla. 3d DCA 1976)
- 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)
- Biscayne Mfg. Corp. v. Sandav Corp., 323 So. 2d 315 (Fla. 3d DCA 1975)
- Nichols v. Louie L. Wainwright, 243 So. 2d 430 (Fla. 2d DCA 1971)
- Hilbert Walker v. Louie L. Wainwright, 411 So. 2d 1038 (Fla. 1st DCA 1982)