ERIC RUSSAW, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Eric Russaw sought appellate review of his sentence but could not afford the filing fee. His public defender failed to pursue proper indigency procedures, and the trial judge's dismissive denial of indigency was not communicated to Russaw. The appellate court transferred the case to the trial court as post-conviction relief to determine whether the public defender's inaction constituted ineffective assistance of counsel.
The court cannot grant the habeas corpus writ without determining Russaw's current financial status and holding a hearing on the facts surrounding the public defender's failures. The court transferred the matter to the trial court to be treated as post-conviction relief under rule 3.850, Florida Rules of Criminal Procedure, to determine whether the public defender's inaction constituted ineffective assistance of counsel.
[1] A defendant seeking appellate review of a sentence may be entitled to belated review via habeas corpus when the initial appeal is dismissed due to the public defender's f…
[2] A trial court's denial of an order of indigency based on the conclusion that an appeal is frivolous may be grounds for ineffective assistance of counsel claims.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The Defendant simply does not like his sentence — the appeal is frivolous.”
Trial judge's dismissive characterization of Russaw's indigency application and appeal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRussaw's assistant public defender filed a notice of appeal on October 17, 1990, seeking appellate review of his sentence. The trial judge denied Russ…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Petition For Writ Of Habeas Corpus cases and more on FLexlaw
[*559] PETERSON, Judge.
Eric Russaw’s assistant public defender filed a notice of appeal on October 17,1990, pursuant to his client’s instruction to seek appellate review of his sentence. An order of indigency was also requested, but the trial judge who considered the request, and who was also the sentencing judge, denied the application for the order. The order of denial states, in part, “The Defendant simply does not like his sentence — the appeal is frivolous.” A copy of the order of denial was furnished to the public defender, but not to the petitioner. This court also received a copy of the trial court’s order and issued an order directing the petitioner either to file a certified copy of a lower court order of insolvency or to pay the filing fee. Again, the petitioner was not furnished with a copy of this court’s order. Inexplicably, the assistant public defender neither filed a response to this court’s order nor sought review of the trial court’s denial of an order of indigency under rule 9.430, Florida Rules of Appellate Procedure.
Russaw now seeks belated appellate review of his sentence by filing a petition for writ of habeas corpus with this court. He indicates in his petition that he was advised by a trial judge to follow this procedure since it was this court that dismissed the original appeal. The state’s response indicates that it has no objection to the petition.
We cannot grant the writ without knowing Russaw’s present financial status and appointing a commissioner to take testimony regarding the alleged facts surrounding the public defender’s failure to react to the original denial of the order of indigency. An affidavit of indigency was neither attached to the instant petition nor filed in the original direct appeal that was dismissed for failure to pay the filing fee.
The assistant public defender’s failure to seek appropriate review in this court of the order declining to enter an order of insolvency may have constituted ineffective assistance of trial counsel. We therefore transfer this matter to the Circuit Court of the Seventh Judicial Circuit in and for Putnam County, Florida, with instructions to treat Russaw’s petition for writ of habeas corpus as a motion for post-conviction relief under rule 3.850 of the Florida Rules of Criminal Procedure.
GOSHORN, C.J., and DIAMANTIS, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Shaw-Messer v. Messer, 743 So. 2d 1199 (Fla. 5th DCA 1999)…MANDED. ANTOON, C.J., W. SHARP, and GRIFFIN, JJ., concur. . We agree that this reason would be an improper basis to deny a request for indigency status. See Daniels v. State, 441 So. 2d 186 [*1200] (Fla. 5th DCA 1983). See also Russaw v. State, 600 So. 2d 558 (Fla. 5th DCA 1992).…