CHARLES FRANKLIN SHORT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Franklin Short appeals the denial of his post-conviction relief motion, asserting that his trial counsel was ineffective for failing to file a timely notice of appeal despite being asked to do so. The court reverses, holding that when counsel is advised a defendant wishes to appeal, failure to file a timely notice of appeal constitutes ineffective assistance of counsel regardless of whether reversible error occurred at trial.
When trial counsel is apprised that a client wishes to appeal his conviction, counsel's failure to file a timely notice of appeal constitutes ineffective assistance of counsel. A defendant alleging such ineffective assistance is entitled to a belated appeal without any preliminary showing of reversible error at trial.
[1] Failure to file a timely notice of appeal, after being apprised that a client wishes to appeal, constitutes ineffective assistance of counsel.
[2] Entitlement to a belated direct appeal is not dependent on a preliminary showing of reversible error at trial.
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Join FLexlaw to unlock all legal intelligence“Where trial counsel has been apprised that his client wishes to appeal his conviction, counsel's failure to file a timely notice of appeal constitutes ineffective assistance of counsel, 'and this applies equally to both court-appointed attorneys and those privately-retained by defendant.'”
Establishes the core legal principle that failure to file a timely notice of appeal when requested is ineffective assistance of counsel regardless of counsel type.
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Join FLexlaw to unlock all legal intelligenceCharles Franklin Short was convicted and wished to appeal his conviction. He advised his trial counsel of his desire to appeal, but counsel failed to …
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JOANOS, Chief Judge.
Appellant Charles Franklin Short appeals the denial of his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. As the basis for relief, the motion asserted that appellant’s trial counsel was ineffective for failing to file a timely notice of appeal, although advised by appellant that he wished to appeal his conviction. The trial court’s order indicates that relief was denied, because appellant failed to show that any reversible error occurred at trial. We reverse.
Where trial counsel has been apprised that his client wishes to appeal his conviction, counsel’s failure to file a timely notice of appeal constitutes ineffective assistance of counsel, “and this applies equally to both court-appointed attorneys and those privately-retained by defendant.” Thames v. State, 549 So. 2d 1198, 1199 (Fla. 1st DCA 1989), citing State v. Meyer, 430 So. 2d 440 (Fla.1983); Long v. Wainwright, 474 So. 2d 7 (Fla. 1st DCA 1985), review denied, 482 So. 2d 350 (Fla.1986). Accord Dortch v. State, 588 So. 2d 342 (Fla. 4th DCA 1991); Turner v. State, 588 So. 2d 1042 (Fla. 5th DCA 1991). Therefore, if trial counsel fails to file a timely notice of direct appeal when requested to do so, the defendant is entitled to an order under rule 3.850 granting a belated appeal. Viqueira v. Roth, 591 So. 2d 1147 (Fla. 3d DCA 1992). In addition, ‘‘entitlement to a belated direct appeal is not dependent on any preliminary showing on the merits.” Viqueira, 591 So. 2d 1147, citing Baggett v. Wainwright, 229 So. 2d 239, 243 (Fla.1969).
Application of these principles to the instant case demonstrates that appellant alleged facts sufficient to show entitlement to relief on the question of ineffective assistance of trial counsel. That is, appellant alleged that his trial counsel failed to file a timely notice of appeal, although advised by appellant that he wished to appeal his convictions. Moreover, contrary to the trial court’s finding, appellant was not required to make a showing of reversible error at trial as a preliminary to entitlement to post-conviction relief.
Accordingly, the order denying relief is reversed, and this cause is remanded for a determination whether appellant requested his trial counsel to file a notice of appeal. The determination may be made by conducting an evidentiary hearing, or by attaching a portion of the record which negates appellant’s allegations. See Dortch, 588 So. 2d at 343.
SHIVERS and BARFIELD, JJ., concur.
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Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)…le the notice of appeal. See also infra section V. . This reasoning is flawed. In criminal cases, it is the responsibility of trial counsel to file a timely notice of appeal in order to preserve the defendant’s appellate rights. See Short v. State, 596 So. 2d 502, 503 (Fla. 1st DCA 1992); Thames v. State, 549 So. 2d 1198, 1199 (Fla. 1st DCA 1989), see also State v. District Court of Appeal, First District, 569 So. 2d 439, 441 (Fla.1990); State v. Meyer, 430 So. 2d 440, 443 (Fla.1983); Viqueira v. Roth, 591 S…
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Stephenson v. State, 640 So. 2d 117 (Fla. 2d DCA 1994)…ient motion, we direct the trial court to grant it without the necessity of an evidentia-ry hearing and afford him a belated appeal, regardless of the merits of the appeal. Iglesias v. State, 598 So. 2d 210 (Fla. 2d DCA 1992). Accord Short v. State, 596 So. 2d 502 (Fla. 1st DCA 1992). We also direct the trial court to re-appoint Stephenson’s appellate counsel in this case to represent Stephenson on his belated appeal. We know it seems incongruous for us to dismiss Stephenson’s direct appeal while at the same…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- State v. Meyer, 430 So. 2d 440 (Fla. 1983)
- Viqueira v. Roth, 591 So. 2d 1147 (Fla. 3d DCA 1992)
- Thames v. State, 549 So. 2d 1198 (Fla. 1st DCA 1989)
- Long v. Louie L. Wainwright, 474 So. 2d 7 (Fla. 1st DCA 1985)
- Sherrill B. Turner v. State, 588 So. 2d 1042 (Fla. 5th DCA 1991)
- AIG Life Ins. Co. v. Boroughf, 588 So. 2d 342 (Fla. 4th DCA 1991)