DONALD R. MCGINTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McGinty appealed a conviction entered upon guilty plea, but Florida law prohibits direct appeals from guilty plea convictions without prior collateral attack. The court dismissed the appeal for lack of jurisdiction and addressed concerns about whether appointed counsel's duty to raise jurisdictional defects conflicts with representing the appellant's interests.
The court lacks jurisdiction to hear a direct appeal from a guilty plea conviction without prior collateral attack through a motion to withdraw plea or Rule 3.850 motion. Appointed counsel does not act unethically by filing a statement identifying this jurisdictional defect, as counsel is channeling the client's claims to the proper procedural avenue and serving the client's interests.
[1] A direct appeal from a judgment and sentence entered upon a guilty plea is generally not permitted when the sentence is within the statutory maximum.
[2] Review of issues concerning the voluntariness of a guilty plea, after sentencing and absent a prior motion to withdraw the plea or vacate the judgment, must be sought thr…
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Join FLexlaw to unlock all legal intelligence“such a defendant shall obtain review by means of collateral attack”
Establishes that guilty plea convictions cannot be directly appealed but must proceed through collateral attack procedures
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Join FLexlaw to unlock all legal intelligenceMcGinty was convicted after entering a guilty plea. The Public Defender for the Tenth Judicial Circuit filed a statement of judicial acts to be review…
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PER CURIAM.
This appeal is taken from a judgment and sentence entered upon a guilty plea. Pursuant to section 924.06(3), Florida Statutes, Rule 3.172(c)(iv), Fla.R.Crim.P., and Rule 9.140(b)(1), Fla.R.App.P., there is no right to a direct appeal in such case. The statute requires that .. such a defendant shall obtain review by means of collateral attack.” See, also, Robinson v. State, 373 So. 2d 898 (Fla.1979) and Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). The latter case states that an appeal may be taken only after a collateral attack and mentions the two modes of collateral attack: a motion to withdraw plea and a Rule 3.850 motion to vacate.
Counsel for appellant, the Public Defender for the Tenth Judicial Circuit, has notified this court by means of a “statement of judicial acts to be reviewed” that this appeal is from a guilty plea, the sentence is within the maximum provided by law and, further, has attached a certificate of the clerk of the trial court that no motion to withdraw plea or Rule 3.850 motion to vacate has been filed by appellant in this case.
After receipt of this document filed by the public defender, this court has entered its usual order to show cause directed to appellant, pro se, explaining that any issue as to voluntariness of the guilty plea must now be raised by collateral attack. Appellant has not responded to the show cause order and this appeal must be dismissed because this court is without jurisdiction.
We write this opinion because we sense some concern by appellate counsel as to the ethics of filing such a statement of judicial acts to be reviewed on the ground that the document may appear to be an act taken against the interests of the client. Indeed, a few appellate public defenders have filed such a document reluctantly and most have not filed them at all. We perceive no substantial cause for concern. First, the statute and rules cited above make this a jurisdictional question which the court is obliged to resolve even if not raised by either counsel. Secondly, counsel is not expressing an opinion as to the merits of the client’s contentions, only that an appeal does not presently lie. In effect, counsel is merely channeling the client’s complaints on the guilty plea to the proper methods of attack, a motion to withdraw or a Rule 3.850 motion, and, if these are denied, an appeal from the denial. In doing this, the appellate attorney has served the client’s interest by assisting the court in channeling a claim where it can be heard on the merits. Surely, if Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) permits appointed counsel to state in a brief that there is no merit in the appeal, merely changing the method of attack is permissible. Counsel is also serving the interest of other appellants by alerting this court at an early date since counsel will not have to file a brief on the merits in a case that will be ultimately dismissed anyway and may devote more time to writing briefs in other cases.
Accordingly, the above-styled appeal is hereby dismissed.
GRIMES, A.C.J., and SCHEB and LE-HAN, JJ., concur.
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Bridges v. Dugger, 518 So. 2d 298 (Fla. 2d DCA 1987)…vertently has failed to appreciate those rights and who reasonably, but mistakenly, believes counsel understands his desire to appeal. . The “no merit" letter is qualitatively different than the statement of judicial acts filed in McGinty v. State, 463 So. 2d 495 (Fla. 2d DCA 1985), pointing out to the court that the appellant had been convicted upon a plea of guilty, that no viable issue had been preserved for appellate review, and thus that the appeal was subject to dismissal. Although all public defenders…
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Hughes v. State, 565 So. 2d 354 (Fla. 1st DCA 1990)…of these cases and they are uncertain as to how to proceed. For example, one public defender has employed a “statement of judicial acts to be reviewed” which brought to the appellate court’s attention the lack of any viable issues, McGinty v. State, 463 So. 2d 495 (Fla. 2d DCA 1985). Another response has been the filing of an Anders brief, Skinner, 399 So. 2d at 1065. The Public Defender for the Fourth Judicial Circuit has moved to dismiss such appeals in this court. See, e.g., Sinclair v. State, case number…
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Gill v. State, 550 So. 2d 72 (Fla. 2d DCA 1989)…46 (Fla. 2d DCA 1984); Odom v. State, 310 So. 2d 770, 771 (Fla. 2d DCA 1975). Gill, however, never moved to withdraw his plea in the trial court. Accordingly, this court is without jurisdiction to grant relief as to this issue. See McGinty v. State, 463 So. 2d 495, 496 (Fla. 2d DCA 1985). Gill, therefore, should file in the trial court either a motion to withdraw his plea or a motion under Florida Rule of Criminal Procedure 3.850 to vacate his sentence. See McGinty, 463 So. 2d at 496. Gill’s second point on…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979)