STEPHEN HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephen Harris appealed the trial court's summary denial of his Rule 3.850 post-conviction relief motion, which alleged ineffective assistance of counsel and other constitutional violations. The court affirmed the denial but allowed Harris to refile his ineffective assistance claim regarding failure to appeal if he could allege he made a timely request for appeal to counsel.
The trial court correctly found Harris's ineffective assistance claim legally insufficient because he did not allege he made a timely request for an appeal that counsel refused. However, the court affirmed without prejudice, allowing Harris to refile if he alleged such a request was made and dishonored.
[1] A defendant states a colorable claim of ineffective assistance of counsel for failure to file an appeal when the defendant alleges that counsel failed to honor a timely r…
[2] A trial court must determine whether a defendant requested counsel to file an appeal, either through an evidentiary hearing or by attaching record evidence negating the a…
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Join FLexlaw to unlock all legal intelligence“A defendant states a colorable claim of ineffective assistance when he alleges that he made a timely request for an appeal which counsel failed to honor.”
Establishes the legal standard for ineffective assistance claims based on failure to file an appeal
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Join FLexlaw to unlock all legal intelligenceHarris was convicted of aggravated battery in April 1989 with no appeal taken. Two years later in April 1991, he filed a post-conviction motion allegi…
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PER CURIAM.
Stephen Harris has appealed an order of the trial court summarily denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm, but as to the allegation of ineffective assistance of counsel for failure to file an appeal, without prejudice to the filing of a legally sufficient motion.
Harris was convicted of aggravated battery in April 1989; no appeal was taken. In April 1991, he filed the instant motion alleging: 1) that he was never afforded a first appearance after arrest; 2) illegal search and seizure; 3) the state failed to disclose evidence favorable to him; and 4) his counsel was ineffective for failing to address the foregoing issues in the trial court, and for failing to inform Harris that he could appeal or to file an appeal. The trial court denied the motion, and we affirm. One issue, however, merits further discussion.
As to the allegation that counsel was ineffective for failing to file an appeal, the court found it legally insufficient because Harris did not allege that he requested counsel to file an appeal. We agree. A defendant states a colorable claim of ineffective assistance when he alleges that he made a timely request for an appeal which counsel failed to honor. Smith v. State, 592 So. 2d 1208 (Fla. 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 wish by this opinion to foreclose Harris from obtaining a belated appeal, if indeed he is entitled to one. Therefore, as to this allegation, we affirm without prejudice to the filing by Harris of a sworn motion pursuant to Rule 3.850 which alleges that a request for appeal was timely made and dishonored by counsel.
Affirmed.
JOANOS, C.J., and ERVIN and MINER, JJ., concur.
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Fulton Perkins v. State, 662 So. 2d 970 (Fla. 5th DCA 1995)…PER CURIAM. AFFIRMED. Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992); Gilliam v. State, 611 So. 2d 90 (Fla. 2d DCA 1992). PETERSON, C.J., and HARRIS and GRIFFIN, JJ., concur.…
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Smith v. State, 601 So. 2d 611 (Fla. 1st DCA 1992)…s. As to the allegation that trial counsel was ineffective for failing to file Smith’s appeal, we agree that such an allegation is legally insufficient unless the movant also avers that counsel was requested to file an appeal. See Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992). Therefore, we affirm the order of the trial court as to this allegation. However, as in Harris, we affirm without prejudice to the filing by Smith of a sworn motion pursuant to Rule 3.850 which alleges that a request for appeal…
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Battles v. State, 668 So. 2d 333 (Fla. 1st DCA 1996)…s trial counsel failed to file a timely notice of appeal.” We affirm because the motion fails to allege that appellant timely requested his attorney to file a notice of appeal. See Gilliam v. State, 611 So. 2d 90 (Fla. 2d DCA 1992); Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992). We do so without prejudice to appellant filing a sworn motion containing legally sufficient allegations. To the extent appellant’s motion can be construed as raising other grounds, we affirm because those claims are barred by…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991)
- AIG Life Ins. Co. v. Boroughf, 588 So. 2d 342 (Fla. 4th DCA 1991)
- Smith v. State, 592 So. 2d 1208 (Fla. 2d DCA 1992)