P.M.W., A CHILD, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A juvenile delinquent petitioned for a writ of habeas corpus after his appellate counsel failed to file an initial brief, resulting in dismissal of his direct appeal. The court granted the petition, finding ineffective assistance of counsel, and reinstated the appeal with new counsel.
The court held that counsel's failure to file a timely initial brief constitutes ineffective assistance of counsel, and the prejudice prong of the Strickland test is satisfied as a matter of law when substandard performance causes dismissal of an appeal and deprivation of appellate review.
[1] Failure of appellate counsel to file an initial brief, resulting in the dismissal of a direct appeal, constitutes ineffective assistance of counsel.
[2] When substandard performance of counsel causes the dismissal of an appeal, thereby depriving a defendant of appellate review, the prejudice prong of the ineffective assis…
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Join FLexlaw to unlock all legal intelligence“Upon P.M.W.'s request, appellate counsel had a duty to file a notice of appeal and a timely initial brief setting forth P.M.W.'s case on appeal. The attorney's failure caused the appeal to be dismissed and constitutes ineffective assistance of counsel.”
Establishes the core duty of appellate counsel and that failure to perform it constitutes ineffective assistance.
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Join FLexlaw to unlock all legal intelligenceP.M.W. filed a timely notice of appeal on August 15, 1994. Prior counsel filed an untimely motion to extend the filing deadline in December 1994, whic…
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ANTOON, Judge.
In this delinquency case, P.M.W. petitions this court for a writ of habeas corpus seeking a belated appeal because his appellate counsel failed to file an initial brief. We grant the petition, reinstate the appeal, and authorize new counsel thirty (30) days to file an initial brief.
On August 15, 1994, P.M.W.’s prior counsel filed a timely notice of appeal. On December 9, 1994, he filed an untimely motion to extend the time for filing the initial brief which was “denied. On January 31, 1995, after issuance of an order to show cause why the appeal should not be dismissed, counsel again filed a motion for extension of time. The motion was granted and defendant was given until March 31, 1995 to file the initial brief. The extended deadline expired, and with no brief having been filed, this court dismissed the appeal.
Through new counsel, P.M.W. argues that prior counsel’s failure to file an initial brief resulting in dismissal of his direct appeal constitutes ineffective assistance of counsel. He argues that the prejudice prong of the two-part test for evaluating substandard attorney performance set forth in Strickland v. Washington, 466 U.S. 668, 680, 104 S.Ct. 2052, 2060-61, 80 L.Ed.2d 674 (1984), is satisfied as a matter of law. We agree.
Upon P.M.W.’s request, appellate counsel had a duty to file a notice of appeal and a timely initial brief setting forth P.M.W.’s case on appeal. The attorney’s failure caused the appeal to be dismissed and constitutes ineffective assistance of counsel. Rooney v. State, 632 So. 2d 212 (Fla. 5th DCA 1994). In a criminal case, when the substandard performance of counsel is the cause of the dismissal of an appeal depriving the defendant of appellate review, the prejudice prong is satisfied. Under these circumstances, it is not necessary to establish the possibility of success on the merits. See Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969).
We grant the petition, reinstate appeal no. 94-1903, and direct counsel for P.M.W. to file an initial brief within thirty (30) days of receipt of the mandate from this court.
PETITION GRANTED; WRIT ISSUED; CAUSE REMANDED.
GRIFFIN and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Burnside v. State, 720 So. 2d 269 (Fla. 5th DCA 1998)…as corpus seeking a belated appeal because his privately retained attorney failed to file an initial brief. Appellate counsel’s failure to file an initial brief is clearly below the norm of professionally acceptable performance. See P.M.W. v. State, 678 So. 2d 484 (Fla. 5th DCA 1996); Rooney v. State, 682 So. 2d 212 (Fla. 5th DCA 1994). We grant the petition, reinstate Burnside’s appeal in this court’s ease number 97-2884 and relinquish jurisdiction to the trial court for a period of 30 days to appoint substi…
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Tullis v. State, 690 So. 2d 749 (Fla. 5th DCA 1997)…el repeatedly failed to file a brief as ordered by this court. We grant the petition, reinstate the appeal and direct Tullis’ new counsel1 to file an initial brief within thirty (30) days of receipt of the mandate of this court. See P.M.W. v. State, 678 So. 2d 484 (Fla. 5th DCA 1996); Rooney v. State, 632 So. 2d 212 (Fla. 5th DCA 1994); Melbourne v. State, 635 So. 2d 163 (Fla. 5th DCA 1994). PETITION GRANTED; WRIT ISSUED; CAUSE REMANDED. PETERSON, C.J., and GOSHORN, J., concur. . Tullís' current counse…
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Holley v. State, 859 So. 2d 568 (Fla. 5th DCA 2003)…t has allowed a belated appeal when the trial court has issued an order which is not in compliance with rule 3.850(g). See, e.g., Kelly v. State, 740 So. 2d 1260 (Fla. 5th DCA 1999); Wray v. State, 690 So. 2d 687 (Fla. 5th DCA 1997); Lewis v. State, 678 So. 2d 484 (Fla. 5th DCA 1996). See also Vlacos v. State, 730 So. 2d 864 (Fla. 1st DCA 1999). Accordingly, we elect to treat Holley’s petition for writ of mandamus as a petition for belated appeal and we order that the state show cause within 20 days why a b…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Rooney v. State, 632 So. 2d 212 (Fla. 5th DCA 1994)