TERRANCE L. BROWN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Brown petitioned for a writ of habeas corpus seeking a belated appeal of his 1995 convictions for aggravated battery with a firearm and attempted first degree murder, alleging his trial attorney failed to file an appeal he requested. The court granted the petition, finding the two-year statutory time limit did not bar the petition and that the doctrine of laches did not apply given the relatively short delay of approximately two years.
The petition was not time-barred by the two-year rule because the rule became effective January 1, 1997, and the time limit commenced with its effective date. The doctrine of laches did not apply given the approximately two-year delay, which was substantially shorter than the 8-15+ year delays in comparable cases. Because the state conceded it could not refute Brown's allegation, an evidentiary hearing was unnecessary, and the petition for a belated appeal was granted.
[1] A petition for a belated appeal is facially sufficient if it alleges that the petitioner requested trial counsel to file an appeal.
[2] A rule establishing a time limit for filing a petition for a belated appeal commences on the rule's effective date.
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“This allegation is facially sufficient under Florida Rule of Appellate Procedure 9.140(j)(2)(F), but the rule also requires a petition to be filed within two years. However, this rule became effective January 1, 1997, and the time limit created by it commenced with its effective date. Thus this petition is not time barred by this rule.”
Establishes that the two-year statutory deadline did not bar the petition because it only began running from January 1, 1997.
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Join FLexlaw to unlock all legal intelligenceBrown was convicted in 1995 of aggravated battery with a firearm and attempted first degree murder. He was sentenced on January 19, 1996. Brown allege…
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W. SHARP, Judge.
Brown petitions for a writ of habe-as corpus, seeking a belated appeal of his 1995 conviction for aggravated battery with a firearm1 and attempted first degree murder.2 He alleges he requested his trial attorney to file an appeal, but the attorney faded to do so. This allegation is facially sufficient under Florida Rule of Appellate Procedure 9.140(j)(2)(F),3 but the rule also requires a petition to be filed within two years. However, this rule became effective January 1, 1997, and the time limit created by it commenced with its effective date. Thus this petition is not time barred by this rule.
The state argues Brown’s belated appeal is barred under the doctrine of laches. McCray v. State, 699 So. 2d 1366 (Fla.1997). In this case, Brown was sentenced on January 19,1996, and his petition was filed March 11, 1998. He alleges no reason for the delay in filing this petition — somewhat more than two years.
We have found no case in which the doctrine of laches was applied in a case involving such a short a period of time. Compare Anderson v. Singletary, 688 So. 2d 462 (Fla. 4th DCA 1997) (laches applied where petition was filed 15 years after appeal concluded); Xiques v. Dugger, 571 So. 2d 3 (Fla. 2d DCA 1990) (second motion properly denied as successive, but laches also may apply for failure to seek relief until 8 years after conviction); Smith v. Wainwright, 425 So. 2d 618 (Fla. 2d DCA 1982) (laches applied when defendant waited 13 years before filing petition); Walker v. Wainwright, 411 So. 2d 1038 (Fla. 1st DCA 1982) (laches applied where defendant filed petition 8 years after conviction); Bab son v. Wainwright, 376 So. 2d 1187 (Fla. 5th DCA 1979), cert. denied, 388 So. 2d 1109 (Fla.1980) (laches applied when defendant waited 14 years before seeking relief and court reporter’s notes had been destroyed); Remp v. State, 248 So. 2d 677 (Fla. 1st DCA 1970) (laches applied when petition wasn’t filed until 13 years after conviction, defense attorney who could refute claim was deceased, and claim counsel ignored request to appeal was not raised in prior post-conviction motions). See also Tyler v. Beto, 391 F. 2d 993 (5th Cir.1968), cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969) (laches applied where defendant waited 25 years before seeking appeal and judge, prosecutor and both defense attorneys were then dead).
Since the state concedes it cannot refute Brown’s allegation that he requested his attorney to prosecute an appeal, an evidentiary hearing to establish that fact appears to be a waste of time. Accordingly, we grant Brown’s petition for a belated appeal, and forward a copy of this order to the trial court to serve as the notice of appeal. Fla. R.App. P. 9.140(j)(5)(D).
Petition for Writ of Habeas Corpus GRANTED.
GOSHORN and PETERSON, JJ„ concur. . § 784.045, Fla. Stat. (1995).
. §§ 782.04, 777.04, Fla. Stat. (1995).
. Rule 9.140Q) provides:
(2) Contents. The petition shall be in the form prescribed by rule 9.100, may include support-
ing documents, and shall recite in the statement of facts:
(F) the specific facts sworn to ... including in the case of a petition for belated appeal whether the petitioner requested counsel to proceed with the appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Chase v. State, 779 So. 2d 278 (Fla. 2d DCA 1998)…(Fla. 3d DCA 1998) (relying in part upon the supreme court’s pronouncement in McCray v. State, 699 So. 2d 1366 (Fla.1997), that attacks on appellate counsel are presumed untimely five years after a conviction becomes final); see also Brown v. State, 711 So. 2d 236 (Fla. 5th DCA 1998) (listing a collection of decisions that apply laches to forbid relief seeking belated appeals). We agree with the reasoning of HuHado. Chase’s delay of seventeen years exceeds the periods of delay in several of the cases recited…
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Ellis v. State, 730 So. 2d 767 (Fla. 5th DCA 1999)…l’s failure to file a Notice of Appeal as timely requested caused petitioner Ellis’ appeal to be dismissed. Therefore, the petition for writ of habeas corpus for belated appeal due to ineffective assistance of counsel is granted. See Brown v. State, 711 So. 2d 236 (Fla. 5th DCA 1998); Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998). We grant the petition, reinstate Ellis’ appeal in this court’s case No. 98-2797, and relinquish jurisdiction to the lower court for a period of thirty days to appoint appell…
Authorities Cited (11 total)
- Ervin McCRAY v. State, 699 So. 2d 1366 (Fla. 1997)
- Tyler v. Beto, 391 F.2d 993 (5th Cir. 1968)
- Oliveri v. Iowa, 393 U.S. 1030 (U.S. 1969)
- Moore v. United States, 393 U.S. 1030 (U.S. 1969)
- Remp v. State, 248 So. 2d 677 (Fla. 1st DCA 1970)
- Sinclair Ref. Co. v. Ada Smith, 248 So. 2d 677 (Fla. 1st DCA 1971)
- Smith v. Louie L. Wainwright, 425 So. 2d 618 (Fla. 2d DCA 1982)
- Xiques v. Dugger, 571 So. 2d 3 (Fla. 2d DCA 1990)
- Babson v. Louie L. Wainwright, 376 So. 2d 1187 (Fla. 5th DCA 1979)
- Hilbert Walker v. Louie L. Wainwright, 411 So. 2d 1038 (Fla. 1st DCA 1982)