MICHAEL T. FAIRCLOTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the trial court's denial of a Rule 3.850 motion for ineffective assistance of counsel where the trial court improperly focused on the merits of the proposed appeal rather than determining whether counsel failed to file a notice of appeal as requested.
A trial court errs in denying a Rule 3.850 motion for ineffective assistance of counsel by examining the merits of a proposed appeal instead of determining whether counsel failed to file a notice of appeal upon request.
[1] A trial court errs in denying a Rule 3.850 motion for ineffective assistance of counsel by examining the merits of a proposed appeal rather than determining whether couns…
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Join FLexlaw to unlock all legal intelligence“Failure to timely seek appeal is ineffective assistance of trial counsel as a matter of law.”
Establishing that failure to file a notice of appeal upon request constitutes ineffective assistance of counsel.
Appellant was convicted on a guilty plea to resisting arrest with violence and petty theft. He alleges he requested his trial counsel file a notice of…
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PER CURIAM.
This is an appeal of an order denying appellant’s rule 3.850 motion without evidentiary hearing, but with attachment of record excerpts, albeit not the determinative ones.
Appellant was convicted on a plea of guilty to one count resisting arrest with violence and one count petty theft. No direct appeal was taken from his conviction and sentence, although appellant alleges that he requested that his trial counsel file a notice of appeal. Failure to timely seek appeal is ineffective assistance of trial counsel as a matter of law. State v. Meyer, 430 So. 2d 440, 443 (Fla.1983). The issue is properly raised in a rule 3.850 motion. Stephenson v. State, 655 So. 2d 86 (Fla.1995).
The trial court denied relief on the ground that the issue that appellant wished to raise in his appeal was without merit. That is not a proper ground for denial of relief. See Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993). It erred in conducting an inquiry into the merits of the proposed appeal, instead of determining the truth of appellant’s allegation that he requested that his counsel file a notice of appeal and that counsel either neglected or refused to do so. We reverse and remand for that determination or for attachment of record excerpts which conclusively disprove appellant’s claim that he asked his counsel to file a notice of appeal.
GLICKSTEIN, DELL and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Trowell, 739 So. 2d 77 (Fla. 1999)…per se ineffective assistance of counsel. See id. As in Baggett, the Court in Meyer did not distinguish between defendants who had pleaded guilty and those who were convicted after a trial. The Fourth District relied on Meyer in Faircloth v. State, 661 So. 2d 1292, 1293 (Fla. 4th DCA 1995), and concluded that the allegation that the defendant requested trial counsel to file a notice of appeal established ineffective assistance of counsel as a matter of law, although the defendant had pleaded guilty. As explai…
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Gonzalez v. State, 685 So. 2d 975 (Fla. 3d DCA 1997)…Robinson rules have been codified in revised Florida Rule of Criminal Procedure - 9.140(b)(2). See Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla.1996). . Other decisions taking the same view include Faircloth v. State, 661 So. 2d 1292 (Fla. 4th DCA 1995), and Love v. State, 623 So. 2d 1221 (Fla. 1st DCA 1993). . Ironically, the result in Gann appears to be correct even though we are in disagreement with the rationale. Gunn had made an ora! motion to withdraw his plea prior to se…
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Gonzalez v. Singletary, 713 So. 2d 1057 (Fla. 3d DCA 1998)…banc) (evaluating limited right to appeal from a plea of guilty or nolo contende-re). We certify direct conflict with Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998) (en banc), review granted, (Fla. No. 92,393 March 5,1998); Faircloth v. State, 661 So. 2d 1292 (Fla. 4th DCA 1995); Owens v. State, 643 So. 2d 105 (Fla. 1st DCA 1994); and Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993). Defendant also petitions for a belated appeal of an order denying his motion for postconviction relief under Florida Rul…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Meyer, 430 So. 2d 440 (Fla. 1983)
- Gunn v. State, 612 So. 2d 643 (Fla. 4th DCA 1993)
- Stephenson v. State, 655 So. 2d 86 (Fla. 1995)