WILLIAM HICKMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Hickman appeals the summary denial of his motion for postconviction relief, claiming he requested an appeal from his 1985 conviction but his trial attorney failed to file it. The court affirms the denial as to most issues barred by the two-year limitations period and successive motion doctrine, but reverses and remands regarding Hickman's claim that he made a timely appeal request that counsel ignored.
The court holds that Hickman's claim regarding counsel's failure to honor his appeal request constitutes an exception to the two-year limitations period and successive motion bar because prior to 1990, habeas corpus was the exclusive remedy for such claims and was not subject to time limitations. On remand, the trial court must determine whether Hickman made a timely appeal request that counsel failed to honor, and if so, must grant the motion and allow Hickman to file a belated notice of appeal within thirty days.
[1] A motion for postconviction relief is barred by the two-year limitations period and the proscription against successive motions, unless an exception applies.
[2] A defendant alleging that the right to appeal was frustrated by trial counsel's actions may seek relief via a motion for postconviction relief.
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Join FLexlaw to unlock all legal intelligence“whenever it is alleged that the right to appeal was frustrated by the actions of trial counsel, such grievances should be presented (as was done in this case) via rule 3.850”
Establishes the proper procedure for raising claims about counsel's failure to file appeals
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Join FLexlaw to unlock all legal intelligenceHickman was convicted and sentenced in 1985 with no appeal filed at that time. Two days after sentencing, Hickman allegedly telephoned his trial attor…
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PER CURIAM.
William Hickman appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
The judgments and sentences under attack were imposed in 1985, and there was no appeal. In addition Hickman has filed one previous, unsuccessful motion. Accordingly the present motion, with one exception, is barred by both the two-year limitations period imposed by Florida Rule of Criminal Procedure and by the proscription against successive motions. See Christopher v. State, 489 So. 2d 22 (Fla.1986). We affirm the ruling of the trial court with respect to all issues except the one discussed below.
The sole exception concerns Hickman’s claim that he telephoned his trial attorney two days after sentencing and asked for an appeal. Despite this request, no appeal was filed. In its response to Hickman’s motion the state concedes that Hickman presents a prima facie case for relief by alleging a possible double jeopardy issue remedial by direct appeal.1
We also find that a valid reason exists for Hickman’s not having raised this claim in a previous, timely motion.2 Prior to 1990 the exclusive method for obtaining belated appellate review was a petition for writ of habeas corpus filed in the appellate court. State v. Meyer, 430 So. 2d 440 (Fla.1983). However, in State v. District Court of Appeal, First District, 569 So. 2d 439 (Fla.1990), the supreme court held that whenever it is alleged that the right to appeal was frustrated by the actions of trial counsel, such grievances should be presented (as was done in this case) via rule 3.850.
After remand, either by reviewing the record or conducting an evidentiary hearing, the trial court should determine whether in fact Hickman made a timely request for an appeal that counsel failed to honor. If the court finds that Hickman’s allegations are not adequately rebutted by the record or by testimony, it should enter an order granting the motion and allowing Hickman to file a notice of appeal. Any such notice should be filed within thirty days of the order granting postconviction relief and should specifically note, either within the body of the notice or by attaching the order, that belated appellate review has been authorized.
Affirmed in part, reversed in part, and remanded with instructions.
SCHOONOVER, C.J., and DANAHY and THREADGILL, JJ., concur. . While a defendant who seeks a belated appeal need not prove that an appeal would have been successful, he must demonstrate that he had a right to appeal. Bridges v. Dugger, 518 So. 2d 298 (Fla. 2d DCA 1987).
. We base this finding partly on the fact that habeas corpus petitions, unlike motions for postconviction relief, have not been subjected to time limitations other than the possible effect of laches. Thus Hickman would not be foreclosed from relief solely by the 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 different result in this appeal if the record were otherwise.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Woolbright v. State, 606 So. 2d 379 (Fla. 1st DCA 1992)…tate, 590 So. 2d 968 (Fla. 1st DCA 1991), specifically directed to the question of whether a 3.850 motion raising the issue of trial counsel’s failure to file an appeal despite request can properly be denied as untimely. See, e.g., Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991) and Cook v. State, 591 So. 2d 1061 (Fla. 2d DCA 1991) (the issue is properly raised outside the two-year time limit, in that the former vehicle for the issue, a petition for writ of habeas corpus, was not subject to a time limit).…
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Love v. State, 623 So. 2d 1221 (Fla. 1st DCA 1993)…he rule announced in State v. District Court, because the prior remedy by petition for writ of habeas corpus was not subject to a limitations period. Woolbright, 606 So. 2d at 380; Cook v. State, 591 So. 2d 1061 (Fla. 2d DCA 1991); Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991). In a similar vein, a guilty plea does not rule out every conceivable opportunity to appeal. Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993). Among other things, one who pleads guilty or nolo contendere can raise the issue of t…
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Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992)…. 2d DCA 1992). It is thereafter the trial court’s duty to determine, either by evidentiary hearing or by attachment of that portion of the record negating the allegation, whether appellant requested his attorney to file an appeal. Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991); Dortch v. State, 588 So. 2d 342 (Fla. 4th DCA 1991). However, although the trial court correctly found that the allegation of ineffective assistance of counsel for failure to file an appeal was legally insufficient, we do not w…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tortoise Island Cmtys., Inc. v. The Moorings Ass'n, Inc., 489 So. 2d 22 (Fla. 1986)
- State v. Dist. Court of Appeal of Fla., 569 So. 2d 439 (Fla. 1990)
- State v. Meyer, 430 So. 2d 440 (Fla. 1983)
- Bridges v. Dugger, 518 So. 2d 298 (Fla. 2d DCA 1987)
- Xiques v. Dugger, 571 So. 2d 3 (Fla. 2d DCA 1990)