WILLIE LEATH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Leath appealed an order denying his post-conviction motion for leave to file a belated appeal from his community control revocation and prison sentence. The court granted the state's motion for rehearing, withdrew its prior opinion, and remanded for an evidentiary hearing to determine whether Leath timely requested his trial attorney to file a notice of appeal.
The court held that the omission of an allegation regarding when the request was made did not require summary denial of relief. The court also held that under the amended appellate procedure rule, the appellate court should conduct a de novo review through an evidentiary hearing to determine whether the appellant timely requested his attorney to file the appeal.
[1] A post-conviction motion for leave to file a belated appeal based on an attorney's failure to file a notice of appeal may not be denied solely for failing to allege the r…
[2] A procedural rule change transferring jurisdiction to consider claims of ineffective assistance of appellate counsel to the appellate court entitles the appellant to a de…
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“We disagree with the state's argument that this omission required denial of relief.”
The court rejected the state's argument that failure to allege when the appeal request was made mandated summary denial of the motion.
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Join FLexlaw to unlock all legal intelligenceLeath sought post-conviction relief alleging that his trial attorney failed to file a notice of appeal when asked to do so. The trial court summarily …
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PER CURIAM.
We grant the state’s motion for rehearing, withdraw our earlier opinion filed on March 12,1997, and substitute the following opinion:
Willie Leath appeals an October 11, 1996 order summarily denying his post-conviction motion for leave to file a belated appeal from the revocation of his community control and his prison sentence. The motion alleged that Leath’s trial attorney failed to file a notice of appeal when asked to do so. Appellant did not allege in his motion that he made this request before the time for taking an appeal had expired.
We disagree with the state’s argument that this omission required denial of relief. The cases relied upon by the state, Gilliam v. State, 611 So. 2d 90 (Fla. 2d DCA 1992) and Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992), are distinguishable because those defendants had faded to allege that they had ever asked their attorneys to file appeals.
After Leath appealed the order denying his motion for 3.850 relief, an amendment to the Florida Rules of Appellate Procedure transferred jurisdiction to consider claims of ineffective assistance of appellate counsel from the trial court to this court. Fla. R.App. P. 9.140(j)(1997). We agree with the first district’s conclusion in Porter v. State, 688 So. 2d 5 (Fla. 1st DCA 1997) that this change in procedure entitles the appellant to a de novo determination by this court of his entitlement to a belated appeal. We will treat appellant’s appeal from the denial of his 3.850 motion as a petition seeking habeas corpus relief from this court pursuant to rule 9.140(j), Florida Rules of Appellate Procedure (1997).
The Honorable Barry E. Goldstein, who issued the original order denying relief, is appointed as commissioner with direction to make findings of fact resolving the issue of whether the appellant timely requested his trial counsel to file a notice of appeal. These findings must be supported either by the results of an evidentiary hearing or by portions of the record. Judge Goldstein shall file a report and recommendations in this court no later than sixty (60) days from the date of this opinion.
DELL, STONE and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Douglas v. Gilliam, 611 So. 2d 90 (Fla. 2d DCA 1992)
- Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992)
- NEW Jerusalem, Inc. v. Wright, 688 So. 2d 5 (Fla. 1st DCA 1997)