DANNY J. SCALF, PETITIONER,
v.
HARRY K. SINGLETARY, JR., SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
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Scalf petitioned for habeas corpus seeking belated appellate review of a circuit court order denying postconviction relief, claiming he and his attorney never received notice of the order. The Florida Second District Court of Appeal granted the petition, holding that despite recent supreme court precedent limiting such relief, the court retains jurisdiction to permit belated appellate review when the trial court fails to apprise the movant of his appellate rights.
The district court retains jurisdiction to entertain petitions for belated appellate review in cases where the trial court fails to apprise the movant of his right to appeal, except when the failure to appeal is attributable to counsel. Scalf was granted belated appellate review because the failure resulted from the trial court's omission, not counsel's negligence.
[1] A petition for writ of habeas corpus may be granted to allow belated appellate review when a party's appellate rights are thwarted by the trial court's failure to apprise…
[2] A court retains jurisdiction to entertain petitions for belated appeal when the failure to appeal is attributable to the trial court, but not when the failure is attribut…
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Join FLexlaw to unlock all legal intelligence“Prior to 1990 this court would have been the proper forum to grant relief whenever it could be demonstrated that the petitioner's appellate rights were thwarted by "state action" or by the omissions of defense counsel.”
Establishes the historical standard for belated appellate review before recent supreme court changes.
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Join FLexlaw to unlock all legal intelligenceScalf sought postconviction relief, and a circuit court held an evidentiary hearing on his motion. The court denied the motion, but neither Scalf nor …
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PER CURIAM.
In this petition for writ of habeas corpus Danny Scalf seeks belated appellate review of a circuit court order denying, after evidentiary hearing, his motion for postconviction relief. The state does not contest the factual allegations contained in the petition, which indicate that neither Scalf nor his attorney received a copy of the court’s order until the appeal time had expired. We write primarily to address the threshold question of our continuing jurisdiction in light of State v. District Court of Appeal, First District, 569 So. 2d 439 (Fla.1990).
Prior to 1990 this court would have been the proper forum to grant relief whenever it could be demonstrated that the petitioner’s appellate rights were thwarted by “state action” or by the omissions of defense counsel. Baggett v. Wainwright, 229 So. 2d 239 (Fla.1970); State v. Meyer, 430 So. 2d 440 (Fla.1983). However, such proceedings often provoked factual disputes which appellate courts are not well-equipped to resolve. In such cases we would often associate the circuit court to take testimony and make recommendations. This cumbersome procedure was abolished, at least in part, by First District, wherein the supreme court expressed a preference for Florida Rule of Criminal Procedure 3.850 for obtaining belated appellate review.
On its facts First District is confined to omissions of counsel. That is, while clearly overruling Meyer, the supreme court left open the question whether Baggett and State ex rel. Shevin v. District Court of Appeal, Third District, 316 So. 2d 50 (Fla.1975), which authorizes belated appeal of 3.850 orders when the trial court fails to apprise the movant of his right to appeal, were similarly overruled to the extent they established rules of procedure. Because the supreme court did not explicitly overrule Baggett and Shevin, we believe that this court still has jurisdiction to entertain petitions for belated appeal except when the failure to appeal is attributable to counsel. See McMillian v. State, 573 So. 2d 965 (Fla. 2d DCA 1991); Cox v. State, 583 So. 2d 822 (Fla. 4th DCA 1991).
The petition for writ of habeas corpus is granted and Scalf shall be permitted belated appellate review of the order denying his motion for postconviction relief. In the event the attorney who represented Scalf at the evidentiary hearing does not intend to represent Scalf on appeal, he shall comply with Florida Rule of Appellate Procedure 9.140(b)(3)(A) within fifteen days of this opinion. All proceedings thereafter shall be governed by the timetables set forth in rule 9.700.
Petition granted.
SCHEB, A.C.J., FRANK and HALL, JJ., concur.
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Citator
Cited By (17 total)
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Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)…ere being two procedures for requesting belated appeal: Florida Rule of Criminal Procedure 3.850 when the criminal appeal was frustrated by ineffective assistance of trial counsel, id.; and habeas corpus for everything else. See Scalf v. Singletary, 589 So. 2d 986 (Fla. 2d DCA 1991). Experience showed that filing in the appellate court was more efficient. This rule is intended to reinstate the procedure as it existed prior to State v. District Court of Appeal, First District. See Baggett v. Wainwright, 229 So…
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Amendments to Florida Rules of Appellate Procedure, 780 So. 2d 834 (Fla. 2000)…ere being two procedures for requesting belated appeal: Florida Rule of Criminal Procedure 3.850 when the criminal appeal was frustrated by ineffective assistance of trial counsel, id.; and habeas corpus for everything else. See Scalf v. Singletary, 589 So. 2d 986 (Fla. 2d DCA 1991). Experience showed that filing in the appellate court was more efficient. This rule is intended to reinstate the procedure as it existed prior to State v. District Court of Appeal, First District. See Baggett v. Wainwright, 229 So…
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Viqueira v. Roth, 591 So. 2d 1147 (Fla. 3d DCA 1992)…it is appropriate to grant a petition for writ of habeas corpus for belated appeal of the order denying post-conviction relief. See State ex rel. Shevin v. District Court of Appeal, Third District, 316 So. 2d 50, 51 (Fla.1975); Scalf v. Singletary, 589 So. 2d 986 (Fla. 2d DCA 1991); Cox v. State, 583 So. 2d 822 (Fla. 4th DCA 1991); Marsh v. State, 581 So. 2d 653 (Fla. 4th DCA 1991). Having granted a belated appeal of the order denying post-conviction relief, the order is reversed. A belated appeal of defend…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- State v. Dist. Court of Appeal of Fla., 569 So. 2d 439 (Fla. 1990)
- State v. Meyer, 430 So. 2d 440 (Fla. 1983)
- State of Fla. ex rel. Robert L. Shevin v. The Dist. Court OF Appeal of Fla., 316 So. 2d 50 (Fla. 1975)
- State v. Barrett, 583 So. 2d 822 (Fla. 4th DCA 1991)
- McMILLIAN v. State, 573 So. 2d 965 (Fla. 2d DCA 1991)
- S. Atl. Prod. Credit Ass'n v. Alton Bruce Morgan and Virginia Bruce Morgan, 573 So. 2d 965 (Fla. 1st DCA 1991)