SIMON VESTER HUDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hudson appealed the summary denial of his Rule 3.850 motion claiming ineffective assistance of counsel for counsel's failure to file a notice of appeal. The court reversed, holding that a claim of ineffective assistance based on failure to file an appeal states a colorable claim and does not require a preliminary showing of reversible error at trial.
A defendant states a colorable claim of ineffective assistance of counsel when he alleges that he made a timely request for an appeal and counsel failed to honor it. Entitlement to a belated appeal in a criminal case is not dependent on a preliminary showing of reversible error on the merits.
[1] A claim of ineffective assistance of counsel based on the failure to file a notice of appeal is properly raised in a motion for post-conviction relief.
[2] A defendant states a colorable claim of ineffective assistance of counsel when alleging a timely request for an appeal was made and counsel failed to honor it.
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Join FLexlaw to unlock all legal intelligence“A claim of ineffective assistance of counsel based on the failure to file a notice of appeal is properly raised in a motion pursuant to Rule 3.850.”
Establishes that such claims are proper vehicles for post-conviction relief
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Join FLexlaw to unlock all legal intelligenceHudson requested that his counsel file an appeal. Counsel failed to do so. Hudson filed a post-conviction Rule 3.850 motion alleging ineffective assis…
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PER CURIAM.
Simon Vester Hudson has appealed from an order of the trial court summarily denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand for further proceedings on the motion.
Hudson’s motion sought a belated appeal alleging the ineffective assistance of counsel in failing to file an appeal despite Hudson’s request that he do so. The trial court summarily denied the motion, in that Hudson did not allege or show that reversible error occurred at his trial, citing Milligan v. State, 194 So. 2d 663 (Fla. 2d DCA 1967) (allegation of neglect of counsel to file a notice of appeal without a showing of any reversible error occurring at the trial will not entitle an appellant to post-conviction relief).
Hudson argues that the order must be reversed based on the trial court’s failure to attach those portions of the files and records conclusively showing no entitlement to relief. The state also urges reversal, with instructions either to attach those portions of the files and records refuting Hudson’s allegation, or to hold an evidentiary hearing on that allegation.
A claim of ineffective assistance of counsel based on the failure to file a notice of appeal is properly raised in a motion pursuant to Rule 3.850. State v. District Court of Appeal of Florida, First District, 569 So. 2d 439 (Fla.1990). A defendant states a colorable claim of ineffective assistance with allegations that he made a timely request for an appeal, and that counsel failed to honor it. Dortch v. State, 588 So. 2d 342 (Fla. 4th DCA 1991); Smith v. State, 592 So. 2d 1208 (Fla. 2d DCA 1992). These cases do not require that the motion show or allege that reversible error occurred at trial, and at least one court has affirmatively held that entitlement to a belated appeal in a criminal case is not dependent on a preliminary showing on the merits. Viqueira v. Roth, 591 So. 2d 1147 (Fla. 3d DCA 1992).
Based on the foregoing authorities1, we reverse the trial court’s order summarily denying Hudson’s motion, and remand for further proceedings on that motion.
JOANOS, C.J., and ERVIN and WIGGINTON, JJ., concur. . Although our decision may technically be in conflict with the Milligan decision cited by the trial court, we believe that that case has been effectively overruled by the authorities cited herein.
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Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998)…s of appeal. See, e.g., Moore v. State, 661 So. 2d 921 (Fla. 1st DCA 1995); Kiser v. State, 649 So. 2d 333 (Fla. 1st DCA 1995); Owens v. State, 643 So. 2d 105 (Fla. 1st DCA 1994); Clayton v. State, 635 So. 2d 48 (Fla. 1st DCA 1994); Hudson v. State, 596 So. 2d 1213 (Fla. 1st DCA 1992); Short v. State, 596 So. 2d 502 (Fla. 1st DCA 1992); Courson v. State, 652 So. 2d 512 (Fla. 5th DCA 1995); Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993), on remand, 643 So. 2d 677 (Fla. 4th DCA 1994); Viqueira v. Roth, 591 So…1 / 2
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Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993)…1148 (Fla. 3d DCA 1992), a defendant’s entitlement to belated appeal under rule 3.850 because counsel failed to follow instructions to file a timely notice of appeal is not dependent on any preliminary showing on the merits. Accord Hudson v. State, 596 So. 2d 1213, 1214 (Fla. 1st DCA 1992); Iglesias v. State, 598 So. 2d 210 (Fla. 2d DCA 1992). It is error to deny such relief because the defendant has failed to show a possibility of success on the merits of the appeal. Viqueira states that the appeal should be…
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Long v. State, 678 So. 2d 925 (Fla. 1st DCA 1996)…as properly denied by the trial court on the basis that appellant failed to allege that he requested counsel to file an appeal. Battles v. State, 668 So. 2d 333 (Fla. 1st DCA 1996); Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993); Hudson v. State, 596 So. 2d 1213 (Fla. 1st DCA 1992)(a defendant states a colorable claim of ineffective assistance with allegations that he made a timely request for an appeal and that counsel failed to honor it). AFFIRMED in part, REVERSED in part and REMANDED. MINER and ALLE…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Dist. Court of Appeal of Fla., 569 So. 2d 439 (Fla. 1990)
- Viqueira v. Roth, 591 So. 2d 1147 (Fla. 3d DCA 1992)
- Milligan v. State, 194 So. 2d 663 (Fla. 2d DCA 1967)
- 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)