JOHN S. MITCHELL, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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Denial of a motion to vacate sentence is affirmed because the defendant's trial counsel's refusal to appeal due to non-payment does not constitute ineffective assistance of counsel when there was no plain reversible error.
The defendant did not appeal his conviction and sentence under the narcotics laws. He now appeals the denial of his motion to vacate the sentence, arg…
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PER CURIAM.
The defendant did not appeal from a conviction and sentence under the narcotics laws. It is now too late to do so. He now appeals from denial of a motion under 28 U.S.C. § 2255 to vacate his sentence.
His present counsel, appointed by the District Court, contends that because trial counsel did not appeal, trial counsel did not give the defendant the “effective assistance” to which he was entitled. The defendant says his trial counsel refused to appeal because the defendant could not pay him a fee. But such a refusal, in the circumstances of this case, is not a ground for vacating the sentence.
It has been said that “failure to appeal may not be excused upon a mere showing of neglect of counsel.” Dennis v United States, 4 Cir., 177 F. 2d 195. Perhaps that statement is too broad. We need not now decide whether failure to appeal would be a denial of effective assistance, and would open a conviction to “collateral attack” under § 2255, if there were plain reversible error in the trial. There was no such plain error in this trial.
Affirmed.
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Nelson v. State, 208 So. 2d 506 (Fla. 4th DCA 1968)
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Milligan v. State, 194 So. 2d 663 (Fla. 2d DCA 1967)
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Rivera v. United States, 318 F.2d 606 (9th Cir. 1963)
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dennis v. United States, 177 F.2d 195 (4th Cir. 1949)