FARETTA
v.
CALIFORNIA
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Richard Albano appealed an order denying his motion for post-conviction relief challenging the sufficiency of the Faretta inquiry at his plea hearing. The appellate court affirmed, finding the claim barred by laches due to the 11-year delay in filing and the destruction of relevant transcripts.
The appellate court affirmed the denial of the motion, holding that Albano's claim is barred by the doctrine of laches due to the unjustified 11-year delay, the destruction of transcripts that prejudiced the State's ability to defend against the claim, and the existence of a signed written plea form that refutes the post-conviction allegation.
[1] A motion for postconviction relief may be barred by the doctrine of laches if filed an unreasonable time after conviction.
[2] Destruction of trial transcripts after a statutory period can prejudice the state in postconviction proceedings.
Previewing 2 of 4 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“Appellant's claim is barred by the doctrine of laches.”
Establishes that the 11-year delay in filing the post-conviction motion bars the claim as a matter of law.
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Join FLexlaw to unlock all legal intelligenceAlbano filed a motion to vacate his conviction approximately 11 years after his initial conviction and plea, claiming an insufficient Faretta inquiry.…
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Before POWELL, BRONSON, and LAUTEN, J.J.
PER CURIAM.
FINAL ORDER AFFIRMING TRIAL COURT
Richard Albano (Appellant) appeals an order denying his motion for post conviction relief alleging a deficient Faretta1 inquiry.
We have carefully considered the record on appeal, the transcript of the hearing and the briefs. We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320, and affirm.
We agree with the trial judge that the evidence did not show sufficient justification for waiting 11 years after his conviction to file his motion to vacate his conviction on the grounds of an insufficient Faretta inquiry.
Further, the transcript of the plea and hearing had been destroyed after 10 years thus prejudicing the State which had no other evidence than a plea form to rebut Appellant’s testimony. Appellant’s claim is barred by the doctrine of laches. See Bartz v. State, 740 So. 2d 1243 (Fla. 3d DCA 1999); Babson v. Wainwright, 376 So. 2d 1187 (Fla. 5th DCA 1979); Remp v. State, 248 So. 2d 677 (Fla. 1st DCA 1970) citing Costello v. U.S., 365 U.S. 265 (1961).
Finally, we note that Appellant had signed and sworn to a written plea form containing extensive advice as to his legal rights, including the right to consult with an appointed attorney; that he understood the nature and effect of the charges and the plea; and that he waived those rights. A written plea form such as this refutes a postconviction claim. See Russ v. State, 937 So. 2d 1199, 1201 (Fla. 1st DCA 2006) (“…..a written plea agreement alone may refute a postconviction claim.”); Hill v. State, 895 So. 2d 1122 (Fla. 4th 2005); Golden v. State, 703 So. 2d 1207 (Fla. 1st DCA 1997).
AFFIRMED. DONE AND ORDERED at Orlando, Florida this __4th___ day of __October________, 2011.
_/S/________________________
ROM W. POWELL Senior Judge
/S/
_/S/_________________________ THEOTIS BRONSON FREDERICK J. LAUTEN Circuit Judge Circuit Judge 3 of 3 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing order was furnished to Adam H. Sudbury, 424 E. Central Blvd., #307, Orlando, Florida 32801; David H. Margolis, Assistant State Attorney, 415 N. Orange Avenue, Ste. 200, Orlando, Florida 32802-1673; and Honorable Faye L. Allen, 425 N. Orange Avenue, Orlando, Florida 32801, this _4th___ day of ___October______________, 2011.
_/S/________________________________
Judicial Assistant
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Costello v. United States, 365 U.S. 265 (U.S. 1961)
- Bartz v. State, 740 So. 2d 1243 (Fla. 3d DCA 1999)
- Remp v. State, 248 So. 2d 677 (Fla. 1st DCA 1970)
- Babson v. Louie L. Wainwright, 376 So. 2d 1187 (Fla. 5th DCA 1979)
- Golden v. State, 703 So. 2d 1207 (Fla. 1st DCA 1997)
- Hill v. State, 895 So. 2d 1122 (Fla. 4th DCA 2005)
- Russ v. State, 937 So. 2d 1199 (Fla. 1st DCA 2006)