BILLY JOE LONG, PETITIONER,
v.
LOUIE L. WAINWRIGHT, RESPONDENT
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Billy Joe Long seeks a belated direct appeal of his 1976 convictions for sexual battery, kidnapping, and false imprisonment. The court grants his habeas corpus petition for a belated appeal, finding that his trial counsel violated Anders v. California by failing to file a notice of appeal, thereby depriving him of appellate review.
Long is entitled to a belated direct appeal. Although counsel's affidavits would ordinarily raise a factual dispute requiring a hearing, the affidavits conclusively show that counsel violated Anders v. California by failing to file a notice of appeal, thereby depriving Long of his right to appellate review as a matter of law.
[1] A defendant's right to a belated appeal may be thwarted by counsel's failure to comply with the requirements of Anders v. …
[2] Affidavits from trial counsel stating that a defendant did not indicate a desire for an appeal until after the time for filing had lapsed are insufficient to refute a cla…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“At best, such affidavits would raise a factual dispute requiring a hearing to determine whether petitioner's right to an appeal was thwarted due to the actions of counsel.”
Establishes the general standard for evaluating counsel affidavits opposing belated appeals.
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Join FLexlaw to unlock all legal intelligenceLong was convicted in 1976 of sexual battery, kidnapping, and false imprisonment. His two public defender trial counsel filed affidavits stating they …
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PER CURIAM.
Petitioner seeks a belated appeal of his 1976 convictions of sexual battery, kidnapping, and false imprisonment. The State disputes petitioner’s entitlement thereto because of affidavits of petitioner’s two trial lawyers who were members of the public defender’s office in the Eighth Judicial Circuit. In the affidavits, counsel state that they communicated with petitioner on various occasions subsequent to his convictions and that petitioner did not indicate that he desired an appeal to be taken until after the 30 days for filing a notice had lapsed.1
Respondent erroneously argues that those affidavits of trial counsel categorically refute petitioner’s assertion that he is entitled to a belated appeal. At best, such affidavits would raise a factual dispute requiring a hearing to determine whether petitioner’s right to an appeal was thwarted due to the actions of counsel. See State v. Meyer, 430 So. 2d 440 (Fla.1983). In this case, however, we find that the affidavits of trial counsel are not sufficient to raise a factual dispute requiring hearing because it is clear from the admissions contained therein that counsel did not comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).2 Therefore, the allegations in the affidavits conclusively show that petitioner was deprived of his right to review, as articulated by the Supreme Court in An-ders, due to the trial counsel’s failure to even file a notice of appeal.
For the foregoing reasons, the petition for habeas corpus seeking a belated appeal is granted. Jurisdiction is temporarily relinquished to the trial court for 20 days for determination of petitioner’s entitlement to appointed counsel, and appointment thereof if appropriate.
BOOTH, C.J., and MILLS and ZEHMER, JJ., concur. . Because no direct appeal was ever taken, petitioner twice attempted to collaterally attack his convictions by filing motions pursuant to Rule 3.850, Florida Rules of Criminal Procedure. After denial of the first, petitioner filed a timely notice of appeal which inexplicably never reached this court. After denial of the second motion, petitioner perfected an appeal, which was pending when this petition was filed. (In view of our decision to grant a direct appeal, that cause has been dismissed by separate, non-published order.) Thus, petitioner has not failed to use due diligence in bringing his claim. However, review of a denial of a 3.850 motion is no substitute for a direct appeal.
. At the time of petitioner’s convictions, Rule 9.140, Florida Rules of Appellate Procedure, was not yet in effect.
Cases With Similar Vibessemantic neighbors from the corpus
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Short v. State, 596 So. 2d 502 (Fla. 1st DCA 1992)…nce of counsel, “and this applies equally to both court-appointed attorneys and those privately-retained by defendant.” Thames v. State, 549 So. 2d 1198, 1199 (Fla. 1st DCA 1989), citing State v. Meyer, 430 So. 2d 440 (Fla.1983); Long v. Wainwright, 474 So. 2d 7 (Fla. 1st DCA 1985), review denied, 482 So. 2d 350 (Fla.1986). Accord Dortch v. State, 588 So. 2d 342 (Fla. 4th DCA 1991); Turner v. State, 588 So. 2d 1042 (Fla. 5th DCA 1991). Therefore, if trial counsel fails to file a timely notice of direct appe…
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Long v. State, 483 So. 2d 872 (Fla. 1st DCA 1986)…PER CURIAM. By a previous opinion of this court, Long’s petition for habeas corpus seeking a belated appeal was granted. Long v. Wainwright, 474 So. 2d 7 (Fla. 1st DCA 1985). By uncontested affidavits, petitioner has demonstrated that the original court file cannot be located and that the court reporter has lost her stenographic notes of the trial. Under these circumstances, we find that petitioner’s…
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Brown v. State, 502 So. 2d 1293 (Fla. 1st DCA 1987)…ZEHMER, Judge. Appellant, Tommy Brown, appeals the sentence imposed upon his conviction for escape, complaining that the guidelines scoresheet was improperly calculated. We grant appellant’s request for a belated appeal. Long v. Wainwright, 474 So. 2d 7 (Fla. 1st DCA 1985), pet. for rev. denied, 482 So. 2d 350 (Fla.1986). Brown was charged with escape from a police vehicle after his arrest for driving without a valid license. Thereafter, he entered into a plea agreement whereby he would plead nolo…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Meyer, 430 So. 2d 440 (Fla. 1983)