VICTORIA D. WALKER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Victoria Walker petitioned for a belated appeal of criminal convictions entered on a guilty plea after her trial counsel allegedly failed to file a timely notice of appeal. The court granted the petition under the newly announced Trowell standard, which requires appellate courts to grant belated appeal petitions when a defendant alleges a timely request to counsel was made and counsel failed to comply, absent a good faith dispute by the state.
The court granted the petition for belated appeal without requiring an evidentiary hearing because Walker's account matched the advice her counsel stated he would have given if asked, and counsel did not deny that Walker made a timely request. Under Trowell, when a defendant alleges timely request to counsel and counsel fails to file, and the state does not raise a good faith factual dispute, the appellate court should grant the belated appeal petition.
[1] A petition for a belated appeal should be granted if the defendant alleges that a timely request was made to counsel to file a notice of appeal and counsel failed to do s…
[2] If the State raises a good faith basis to dispute a defendant's claims regarding a belated appeal, an evidentiary hearing may be ordered to resolve factual disputes.
Previewing 2 of 5 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“the appellate court should grant a petition seeking a belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so. If the State raises a good faith basis to dispute the defendant's claims through affidavit or specific contrary allegations, the appellate court may order an evidentia-ry hearing in the trial court to determine the limited dispute issues of fact.”
This quote from Trowell establishes the standard for granting belated appeal petitions that the court applied to grant Walker's petition.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWalker entered guilty plea convictions and expressly waived her right to appeal in the plea colloquy. After sentencing, Walker asked her privately ret…
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On Rehearing Wanted,
COPE, J.
On the court’s own motion, the court withdraws the opinion dated May 19, 1999, and substitutes the following opinion.
Vontoria Devon Walker filed a petition for belated appeal of multiple criminal convictions entered on a plea of guilty. In the plea colloquy, defendant-appellant Walker expressly waived the right to appeal. Defendant asserts that after sentencing, he asked his attorney to appeal and counsel informed him that because of the plea, he had given up his right to appeal the judgment and sentence. Consequently no appeal was filed.
Defendant filed a petition in this court for belated appeal. This court initially denied the petition by opinion dated May 19, 1999. Eight days later, the Florida Supreme Court announced State v. Trowell, 739 So. 2d 77 (Fla.1999), which held that:
[T]he appellate court should grant a petition seeking a belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so. If the State raises a good faith basis to dispute the defendant’s claims through affidavit or specific contrary allegations, the appellate court may order an evidentiary hearing in the trial court to determine the limited dispute issues of fact.
Id. at 78 (footnote and citations omitted).* This court ordered rehearing in light of Troivell and appointed the public defender to represent the defendant.
The defendant’s sworn petition asserts that after his sentencing, he asked his privately retained counsel to file a notice of appeal. He further states that counsel “told me that because I had entered into a plea agreement with the State, I had given up my right to appeal my judgment and sentence.”
This court directed the State to contact defendant’s former trial counsel to determine whether there was a disputed issue of fact regarding the request for an appeal. Defense counsel responded that he had no independent recollection one way or the other, but stated that when a client requests an appeal after a guilty plea his normal practice is to inform a defendant that he is not entitled to such since he waived those rights when he pled.
We conclude that defendant is entitled to a belated appeal, and that an evidentiary hearing is not necessary. Defendant’s account matches the advice defense counsel says he would have given if asked, and defense counsel does not recall one way or the other whether he was asked. See Trowell v. State, 706 So. 2d 332, 338 (Fla. 1st DCA 1998) (en banc) (“In that Trowell’s trial attorney has not denied that his client timely requested him to file an appeal, we reverse the order of denial [of belated appeal] as it relates to this issue.”), decision approved, State v. Trowell, 739 So. 2d at 78. The public defender informs us that the defendant has previously been determined to be insolvent for costs, and that appointment of the public defender is appropriate.
As we understand Trowell, the procedure at this point is for appointed appellate counsel to review the file to determine whether there is any meritorious issue for appeal. The issues on which a defendant may directly appeal after a guilty or no contest plea are now found in Florida Rule of Appellate Procedure 9.140(b)(2). See also id. 1996 committee note; Robinson v. State, 373 So. 2d 898 (Fla.1979). If any such appealable issue exists and has arguable merit, the public defender shall brief it. If not, a brief shall be filed under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Petition for belated appeal granted.
*
The supreme court explicitly disapproved this court's earlier decisions in Gonzalez v. State, 685 So. 2d 975 (Fla. 3d DCA 1997), and Loadholt v. State, 683 So. 2d 596 (Fla. 3d DCA 1996). The Trowell decision has also necessarily disapproved this court's decisions, to the extent they disallow belated appeals, in Canty v. State, 730 So. 2d 385, 386 (Fla. 3d DCA 1999); Canton v. State, 729 So. 2d 994 (Fla. 3d DCA 1999); Ponce v. State, 722 So. 2d 838, 839 (Fla. 3d DCA 1998); Battie v. Singletary, 718 So. 2d 323, 324 (Fla. 3d DCA 1998); Gonzalez v. Singletary, 713 So. 2d 1057, 1058 (Fla. 3d DCA) review granted, 719 So. 2d 892 (Fla.1998); and White v. Singletary, 711 So. 2d 640 (Fla. 3d DCA 1998). See Trowell, 739 So. 2d at 78.
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Citator
Cited By (13 total)
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Gaton v. Health Coal., Inc., 745 So. 2d 510 (Fla. 3d DCA 1999)…e acquired such confidential information during his prior representation, but merely states that he has “no present recollection.” A failure to remember, however, does not [*512] rebut clearly set-out assertions, as here. See, e.g., Walker v. State, 742 So. 2d 342 (Fla. 3d DCA 1999) (belated appeal granted to defendant where defense counsel did not recall whether defendant had asked him to file an appeal); Allstate Ins. Co. v. Eckert, 472 So. 2d 807 (Fla. 4th DCA 1985) (insured’s failure to remember receipt o…
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Keithan Darnell Battie v. Singletary, 825 So. 2d 941 (Fla. 3d DCA 2001)…PER CURIAM. By motion for rehearing en banc, which we treat as including a motion for rehearing, defendant-petitioner Battie contends that our denial of relief in his case is inconsistent with the granting of relief in the case of Walker v. State, 742 So. 2d 342 (Fla. 3d DCA 1999). We disagree and deny rehearing. In Walker, this court denied a belated appeal. Eight days later, which was before the expiration of the rehearing time in Walker, the Florida Supreme Court announced State v. Trowell, 739 So. 2d…
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Vaughn v. State, 888 So. 2d 679 (Fla. 3d DCA 2004)…e Court, based on Trowell, quashed the Third District Court of Appeal's decision denying petitioner's request for belated appeal. In that case the petitioner had pleaded guilty and expressly waived his right to appeal. Similarly, in Walker v. State, 742 So. 2d 342 (Fla. 3d DCA 1999), the defendant pleaded guilty and waived right to an appeal. After sentencing, defendant asked his attorney to appeal and counsel informed him that because of the plea, he had given up his right to appeal the judgment and sentence…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- State v. Trowell, 739 So. 2d 77 (Fla. 1999)
- Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998)
- Gonzalez v. State, 685 So. 2d 975 (Fla. 3d DCA 1997)
- Loadholt v. State, 683 So. 2d 596 (Fla. 3d DCA 1996)
- Keithan Darnell Battie v. Singletary, 718 So. 2d 323 (Fla. 3d DCA 1998)
- Ponce v. State, 722 So. 2d 838 (Fla. 3d DCA 1998)
- White v. Singletary, 711 So. 2d 640 (Fla. 3d DCA 1998)