DARREN WOOLBRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darren Woolbright appealed the summary denial of his Rule 3.850 post-conviction relief motion, which alleged that his trial counsel failed to file a timely notice of appeal despite his request. The court affirmed the denial but without prejudice to filing a properly formatted motion, holding that the facial insufficiency of the motion (not under oath) was grounds for denial, though the allegation of counsel's failure to appeal could be raised outside the normal two-year time limit.
The court affirmed the denial of Woolbright's motion as facially insufficient because it was not executed under oath as required by Rule 3.850. However, the allegation that trial counsel failed to file an appeal could properly be raised outside the normal two-year time limit and should be allowed to proceed in a properly formatted motion. The remainder of the motion was affirmed outright as untimely.
[1] A motion for post-conviction relief is facially insufficient if it is not under oath as required by Rule 3.850, Florida Rules of Criminal Procedure.
[2] An allegation of trial counsel's failure to file a timely notice of appeal despite a request to do so may be raised outside the two-year time limit for filing a motion fo…
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Join FLexlaw to unlock all legal intelligence“we are persuaded by Hickman and Cook that it would properly be raised out of time in a motion which otherwise conformed to the requirements of Rule 3.850”
The court's holding that the allegation of counsel's failure to file an appeal can be raised despite the normal two-year time limit, distinguishing it from other stale claims.
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Join FLexlaw to unlock all legal intelligenceWoolbright pled guilty to sexual battery in January 1987 and was sentenced to two years incarceration and two years community control. In March 1988, …
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PER CURIAM.
Darren Woolbright 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 affirm, without prejudice to the filing of a motion which conforms to the requirements of Rule 3.850.
In January 1987, Woolbright pled guilty to sexual battery, and was sentenced to two years incarceration followed by two years community control. In January 1988, he was charged with attempted first-degree murder and two counts of grand theft, to all of which he pled guilty on March 11, 1988. The trial court revoked his community control, and sentenced him to twelve-year terms on the attempted murder and sexual battery charges, and five-year terms on the charges of grand theft, all concurrent. No appeal was filed.
Almost four years later, on February 4, 1992, Woolbright filed the instant motion pursuant to Rule 3.850. He alleged, among other things, that his trial counsel failed to file a timely notice of appeal although requested to do so. Woolbright acknowledged the untimeliness of the motion, but asked that it nevertheless be considered based on several grounds. He specifically included a request that the trial court “allow him to proceed by way of belated appeal.” The trial court denied the motion on its merits, without addressing its apparent untimeliness, trial counsel’s alleged failure to file an appeal, or Wool-bright’s request for a belated appeal.-
After our initial review of this appeal, we .requested a response from the Attorney General pursuant to Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986), and Mattox v. State, 590 So. 2d 968 (Fla. 1st DCA 1991), specifically 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 Woolbright’s motion would properly have been denied as facially insufficient, i.e., it was not under oath as required by Rule 3.850. As to the issue raised by this court, the state simply questions the precedential value of Hickman and Cook in the instant case, arguing that “appellant’s motion makes it clear that he did not seek a belated appeal.”
We agree with the state that the instant motion was correctly denied as facially insufficient, i.e., it was not under oath as required by Rule 3.850. Given this finding, we would customarily affirm without prejudice to the filing by Woolbright of a motion which conforms to the requirements of the rule. However, except as to the allegation of trial counsel's failure to file an appeal, the motion was untimely. Therefore, with the exception of that allegation, we affirm outright the order of the trial court denying the instant motion.
As to that allegation, we are persuaded by Hickman and Cook that it would properly be raised out of time in a motion which otherwise conformed to the requirements of Rule 3.850. Therefore, our affirmance as to that issue only is without prejudice to the filing of a motion which conforms to the requirements of the rule.
Affirmed.
JOANOS, C.J., and SHIVERS and WIGGINTON, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Love v. State, 623 So. 2d 1221 (Fla. 1st DCA 1993)…569 So. 2d 439 (Fla.1990), which substituted rule 3.850 for common law habeas corpus in cases where a defendant’s right to appeal is frustrated by trial counsel’s conduct, the two-year limitations period was not applicable. See Woolbright v. State, 606 So. 2d 379 (Fla. 1st DCA 1992). However, the trial court again denied relief, finding that because appellant pled guilty without reserving any issues for appeal, his attorney was under no obligation to file a notice of appeal. The court further found appellant…1 / 2
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Rodriguez v. State, 637 So. 2d 934 (Fla. 2d DCA 1994)…d 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 entered, but within two years of the supreme court’s decision in First District. The issue [*935] not addre…
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Love v. State, 625 So. 2d 1328 (Fla. 1st DCA 1993)…n relief, pursuant to rule 3.850, Florida Rules of Criminal Procedure, since it was filed more than two years after the judgment and sentence became final. Subsequent to the trial court’s denial, this court issued its opinion in Woolbright v. State, 606 So. 2d 379 (Fla. 1st DCA 1992) ruling that the two year limitations period of rule 3.850 is not applicable where a defendant’s right to appeal is frustrated by trial counsel’s conduct, and the motion pertains to conduct occurring prior to the Supreme Court’s d…
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
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991)
- Cook v. State, 591 So. 2d 1061 (Fla. 2d DCA 1991)
- Mattox v. State, 590 So. 2d 968 (Fla. 1st DCA 1991)