WILLIAM STANLEY HOGGART, APPELLANT/PETITIONER,
v.
LOUIE L. WAINWRIGHT, SECRETARY OF THE DEPARTMENT OF CORRECTIONS, APPELLEE/RESPONDENT
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Hoggart filed an untimely appeal of a post-conviction relief denial but obtained a writ of habeas corpus for belated appeal after the trial court failed to inform him of his appeal rights. The appellate court reversed the erroneous trial court order and remanded for reconsideration of his ineffective assistance of counsel claim.
The petition for writ of habeas corpus seeking belated appeal is granted. The trial court's order denying post-conviction relief is reversed and remanded with instructions that the trial court reconsider the motion for post conviction relief and either hold an evidentiary hearing or attach record portions demonstrating appellant is not entitled to relief.
[1] A petition for writ of habeas corpus seeking a belated appeal is granted when the order denying post conviction relief fails to inform the appellant of their right to app…
[2] Allegations of ineffective assistance of trial counsel are properly determined by the trial court pursuant to a motion for post conviction relief.
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“Allegations of ineffective assistance of trial counsel cannot generally be raised on direct appeal, but are properly determined by the trial court pursuant to a motion for post conviction relief.”
Establishes that ineffective assistance claims belong in post-conviction motions, not direct appeals, supporting reversal of the trial court's categorical rejection.
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Join FLexlaw to unlock all legal intelligenceHoggart filed a motion for post-conviction relief alleging ineffective assistance of trial counsel. The trial court denied the motion, partly on the g…
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PER CURIAM.
Hoggart filed an untimely notice of appeal of an order denying his motion for post conviction relief. That case was docketed by our clerk’s office as Case No. BK-202. Thereafter, appellant filed a petition for writ of habeas corpus seeking belated appeal, correctly pointing out that the order denying his motion for post conviction relief failed to inform him that he had a right to appeal within 30 days. That case was docketed as Case No. BL-281. A show cause order was entered and state responded admitting that appellant is entitled to belated review of the order denying his motion for post conviction relief. Therefore, the petition for writ of habeas corpus seeking belated appeal is granted.
In response to the show cause order, state also admitted that the appealed order is clearly erroneous. In his motion for post conviction relief, appellant alleged that he had received ineffective assistance of trial counsel.
The trial court denied the motion in part because Fla.R.Crim.P. 3.850 “does not authorize relief based upon grounds which could have or should have been raised at trial, and if properly preserved, on direct appeal of the judgment and sentence.” Allegations of ineffective assistance of trial counsel cannot generally be raised on direct appeal, but are properly determined by the trial court pursuant to a motion for post conviction relief. Jacobs v. Wainwright, 450 So. 2d 200 (Fla.1984).
Although state admits error in the appealed order, it suggests that the most expeditious proceeding at this point is to dismiss the habeas petition and remand the appeal to the trial court for reconsideration of the motion for post conviction relief. If state uses the term “remand” interchangeably with “relinquishment of jurisdiction”, leaving the appeal pending in this court, we decline the suggestion. Instead, we reverse the order of the trial court denying the motion for post conviction relief and remand with instructions that the trial court consider the motion anew and either hold an evidentiary hearing or attach such portions of the record that show that appellant is not entitled to relief.
ERVIN, WENTWORTH and JOANOS, JJ., concur.
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McDUFFY v. Moore, 747 So. 2d 1003 (Fla. 2d DCA 1999)…tice of appeal was timely filed under the Department’s own incorrect regulation should have the opportunity to seek belated review of the order. See Fla. R.Crim. P. 3.850(g); Darden v. State, 588 So. 2d 275 (Fla. 2d DCA 1991); Hoggart v. Wainwright, 490 So. 2d 129 (Fla. 1st DCA 1986). Petition granted, order quashed, and cause remanded. PARKER, A.C.J., and NORTHCUTT, J., Concur. . History records that the Chicago Bulls beat the Utah Jazz that night by a score of 90 to 86. Michael Jordan scored 39 points an…
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Seago v. State, 503 So. 2d 979 (Fla. 1st DCA 1987)…ught in his 17 July motion, or is not entitled to that relief. To obtain further review in this cause, Seago must appeal any new ruling of the trial court upon remand. See Williams v. State, 495 So. 2d 921 (Fla. 4th DCA 1986); Hoggart v. Wainwright, 490 So. 2d 129 (Fla. 1st DCA 1986). Reversed and remanded. BOOTH, C.J., and THOMPSON, J., concur.…
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Baker v. State, 516 So. 2d 109 (Fla. 4th DCA 1987)…ion for post-conviction relief under rule 3.850, Florida Rules of Criminal Procedure. We treat the appeal as a petition for writ of habeas corpus seeking belated appeal inasmuch as the tardiness was occasioned by state action. Hoggart v. Wainwright, 490 So. 2d 129 (Fla. 1st DCA 1986). Upon review of the record, we are convinced that no error has been demonstrated. AFFIRMED. DOWNEY, DELL and WALDEN, JJ., concur.…
Authorities Cited
- Eligaah Ardalle Jacobs v. Louie L. Wainwright, 450 So. 2d 200 (Fla. 1984)