DONALD LEE COOK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the motion for postconviction relief should be considered on its merits, despite being potentially untimely or successive.
Donald Lee Cook appealed the summary denial of his motion for postconviction relief concerning a 1975 armed robbery conviction. The motion alleged his…
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[*1062] PER CURIAM.
Donald Lee Cook appeals the summary denial of his motion for postconviction relief. We reverse.
The motion is directed to a 1975 conviction for armed robbery. The sole issue is the alleged failure of trial counsel to file timely notice of appeal although requested to do so. See State v. District Court of Appeal, First District, 569 So. 2d 439 (Fla.1990).1 The circuit court’s order finds that the motion is both untimely and successive. However, for the reasons expressed in our recent opinion in Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991), we believe that Cook’s motion is entitled to consideration on its merits.
There is one significant distinction between Hickman and the present case in that Cook’s conviction is much older than Hickman’s. Arguably Cook had ample time to seek belated appellate review pursuant to State v. Meyer, 430 So. 2d 440 (Fla.1983). After remand the trial court may consider the applicability of laches. See Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975).
Reversed.
SCHEB, A.C.J., and LEHAN and ALTENBERND, JJ., concur. . Cook would have had a right to appeal, since his case was decided by jury trial. Had there been, instead, a plea, Cook probably would be foreclosed from relief for this reason alone. See Marrone v. State, 582 So. 2d 1229 (Fla. 2d DCA 1991); Bridges v. Dugger, 518 So. 2d 298 (Fla. 2d DCA 1987).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Woolbright v. State, 606 So. 2d 379 (Fla. 1st DCA 1992)…y 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). In its response, the state points out that Woolbrigh…
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Love v. State, 623 So. 2d 1221 (Fla. 1st DCA 1993)…e such motion pertains to conduct occurring prior to the 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 plea…
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Rodriguez v. State, 637 So. 2d 934 (Fla. 2d DCA 1994)…equesting a belated appeal of a judgment entered prior to the supreme court’s decision in First District, need not be filed within two years of the judgment because no similar time requirement had existed under habeas corpus. See also Cook v. State, 591 So. 2d 1061 (Fla. 2d DCA 1991); Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991); Woolbnght v. State, 606 So. 2d 379 (Fla. 1st DCA 1992). All of the above-cited cases involve requests for belated appeals filed more than two years after the judgment had been…
Authorities Cited
- State v. Dist. Court of Appeal of Fla., 569 So. 2d 439 (Fla. 1990)
- State v. Meyer, 430 So. 2d 440 (Fla. 1983)
- Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975)
- Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991)
- Bridges v. Dugger, 518 So. 2d 298 (Fla. 2d DCA 1987)
- Marrone v. State, 582 So. 2d 1229 (Fla. 2d DCA 1991)