RANDELL W. HAMMOND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Hammond established ineffective assistance of counsel where his attorney failed to file a timely notice of appeal despite his explicit request, entitling him to a belated appeal despite his nolo contendere plea.
A defendant who timely requests his attorney to file a notice of appeal is entitled to a belated appeal even after entering a nolo contendere plea, when the attorney fails to comply with that request.
[1] A defendant's nolo contendere plea does not forfeit the right to appeal when counsel fails to file a timely notice of appeal despite the defendant's explicit request, con…
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Join FLexlaw to unlock all legal intelligenceRandell W. Hammond pleaded nolo contendere and timely requested his attorney to file a notice of appeal. His attorney failed to do so, and the trial c…
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PER CURIAM.
The defendant, Randell W. Hammond, appeals the denial of his motion for postconviction relief pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. He claims in his sworn motion that he received ineffective assistance of counsel because his attorney failed to honor his timely request to file a notice of appeal. The trial court summarily denied the motion, concluding that the defendant had forfeited his right to appeal by pleading nolo contendere without reservation. We treated the defendant’s facially sufficient motion as a petition under rule 9.140Q) of the Florida Rules of Appellate Procedure and issued an order to show cause why the requested relief should not be granted. The state filed a response to our order but has not offered any evidence to refute the defendant’s sworn allegation that he timely asked his attorney to file an appeal on his behalf.
We conclude that the trial court’s reasons for denying the defendant’s motion were insufficient, see Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998), and that the defendant has a right to a belated appeal. Accordingly, we grant the petition and remand the case to the trial court. Within thirty days of the mandate, trial counsel shall file a notice of appeal as required by rule 9.140(b)(5). If the defendant qualifies for appointed counsel, the trial court shall appoint counsel for the defendant on appeal.
WEBSTER, MICKLE and PADOVANO, JJ., concur.
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Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998)…pinion explaining that when the petitioner’s entitlement to a belated appeal does not depend on a determination of disputed, facts, it is unnecessary for this court to appoint a commissioner to make a report and recommendation. See Hammond v. State, 706 So. 2d 73 (Fla. 1st DCA 1998); Dubois v. State, 705 So. 2d 713 (Fla. 1st DCA 1998).1 [*1103] Florida Rule of Appellate Procedure 9.140(j), created a new procedure for filing original petitions for belated appeal directly in this court. That procedure has been…
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Wessells v. State, 737 So. 2d 1103 (Fla. 1st DCA 1998)…fact that there were no disputed issues of fact, while others have been required to establish entitlement to the belated appeal in evidentiary proceedings. Id. We explained in Dubois v. State, 705 So. 2d 713 (Fla 1st DCA 1998), and Hammond v. State, 706 So. 2d 73 (Fla. 1st DCA 1998), that the state must allege a good faith basis for disputing the factual allegations in the petition for belated appeal before this court will order an eviden-tiary hearing. However, this requirement did not exist when the state…
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Wiggins v. State, 745 So. 2d 540 (Fla. 1st DCA 1999)…fective assistance when he failed to file a direct appeal after Wiggins timely requested him to do so. This constitutes a colorable claim of ineffective assistance of counsel. Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998); Hammond v. State, 706 So. 2d 73 (Fla. 1st DCA 1998); Dubois; Hudson v. State, 596 So. 2d 1213 (Fla. 1st DCA 1992). Nevertheless, the trial court properly concluded that it lacked jurisdiction to consider a claim for a belated appeal. Fla. R.App. P. 9.140(j)(l) (requiring petitions…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998)