JOHN XIQUES, PETITIONER,
v.
RICHARD L. DUGGER, RESPONDENT
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John Xiques petitioned for habeas corpus relief, seeking belated appellate review of his 1982 escape conviction based on claims that his trial counsel failed to file a notice of appeal despite his timely request. The court denied the petition as a successive petition that could be summarily denied under established precedent.
The court denied the petition on the grounds that it constitutes a successive petition regarding ineffective appellate counsel that may be summarily denied under Francois v. Wainwright, and declined to decide whether laches applied given the eight-year delay.
[1] A failure to appeal a conviction, after a timely request has been made, generally constitutes ineffective assistance of counsel remediable by a habeas corpus action in th…
[2] A successive petition for belated appellate review based on ineffective assistance of counsel may be summarily denied.
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Join FLexlaw to unlock all legal intelligence“The failure to appeal a conviction, once a timely request has been made, generally constitutes ineffective assistance of counsel remediable by a habeas corpus action in the appellate court.”
Establishes the legal basis for habeas relief in cases where counsel fails to file an appeal after a timely request
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Join FLexlaw to unlock all legal intelligenceXiques was convicted of escape in 1982. He claims that at sentencing, the trial court never advised him of his right to appeal, and that trial counsel…
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PER CURIAM.
John Xiques petitions this court for a writ of habeas corpus. He seeks belated appellate review of his 1982 conviction and sentence for escape. We deny the petition.
Initially, Xiques alleges that the trial court, at the time of sentencing, “never advised him of his right to appeal.” See Fla.R.Crim.P. 3.670.
However, this oversight, even if factually correct, would appear to be immaterial in light of Xiques’s additional claim that trial counsel made “a verbally implied statement” that he would file a timely appeal after Xiques “did make known to the attorney that he did wish to appeal his conviction.” The failure to appeal a conviction, once a timely request has been made, generally constitutes ineffective assistance of counsel remediable by a habeas corpus action in the appellate court. State v. Meyer, 430 So. 2d 440 (Fla.1983). When presented with a facially sufficient petition for belated appellate review, this court follows the procedure outlined in Bridges v. Dugger, 518 So. 2d 298, 299 n. 2 (Fla. 2d DCA 1987).
Xiques’s petition, however, poses additional problems. Primarily, as admitted by the petitioner himself, this is not the first time his claim of ineffective counsel has been presented.
On June 9, 1989, this court denied habeas corpus relief in a prior proceeding involving the same conviction. Xiques v. Dugger, 545 So. 2d 877 (Fla. 2d DCA 1989) (Table).
In that petition Xiques alleged only that he “never had an appeal,” that trial counsel “withdrew from the case and told [Xiques] he did not have a [sic] appeal,” and that counsel “failed to file a notice of appeal.” Thus the “overt act or omission” of counsel, i.e., the failure to honor a timely request for an appeal, was not sufficiently detailed. Knight v. State, 394 So. 2d 997 (Fla.1981); Bridges v. Dugger, supra. A successive petition regarding ineffective appellate counsel, much like a successive motion under Florida Rule of Criminal Procedure 3.850, may be summarily denied. Francois v. Wainwright, 470 So. 2d 685 (Fla.1985).
An additional potential problem is the fact that Xiques has waited nearly eight years to furnish this court with a facially sufficient petition, and apparently did so only after prompting by the federal district court. Had Xiques claimed ineffective assistance of trial counsel, he would be foreclosed under the two-year limitations period contained in rule 3.850. Analogously, were this an action for legal malpractice, the statute of limitations would have expired. § 95.11(4)(a), Fla.Stat. (1989).
No rule presently exists imposing specific time limits on claims against appellate counsel. The state has suggested in its response to Xiques’s present petition that laches should apply. Laches is a recognized defense in postconviction actions where the movant has engaged in inordinate and prejudicial delay. Bashlor v. Wainwright, 374 So. 2d 546 (Fla. 1st DCA 1979); Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975).
Xiques has replied only that the state “was not and is not prejudiced.” We need not decide this issue, however, given our decision to deny relief on the authority of Francois.
Petition denied.
SCHEB, A.C.J., and SCHOONOVER and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Ervin McCRAY v. State, 699 So. 2d 1366 (Fla. 1997)…rpus petitions “when the delay in bringing a claim for collateral relief has been unreasonable and the state has been prejudiced in responding to the claim.” Anderson v. Singletary, 688 So. 2d 462, 463 (Fla. 4th DCA 1997). See also Xiques v. Dugger, 571 So. 2d 3 (Fla. 2d DCA 1990); Smith v. Wainwright, 425 So. 2d 618 (Fla. 2d DCA 1982); Remp v. State, 248 So. 2d 677 (Fla. 1st DCA 1970). Moreover, the doctrine of laches has been applied to bar a collateral relief proceeding when, from the face of the petitio…
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Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991)…he fact he waited more than two years to request a belated appeal. This does not mean, however, that the state may not claim, and seek to prove, prejudice from Hickman’s delay in raising this issue. It should also be noted that in Xiques v. Dugger, 571 So. 2d 3 (Fla. 2d DCA 1990), this court recognized a limitation on successive habeas corpus petitions seeking belated appellate review. Our records indicate no prior attempt by Hickman to litigate this same issue by habeas corpus. We would likely reach a dif…
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Xiques v. Dugger, 571 So. 2d 3 (Fla. 2d DCA 1990)
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
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- State v. Meyer, 430 So. 2d 440 (Fla. 1983)
- Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975)
- Francois v. Louie L. Wainwright, 470 So. 2d 685 (Fla. 1985)
- Bridges v. Dugger, 518 So. 2d 298 (Fla. 2d DCA 1987)
- Xiques v. Dugger, 571 So. 2d 3 (Fla. 2d DCA 1990)
- Bashlor v. Louie L. Wainwright, 374 So. 2d 546 (Fla. 1st DCA 1979)