RONNIE WIGGINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ronnie Wiggins appealed a trial court order summarily denying his Rule 3.850 motion for postconviction relief. The appellate court affirmed the denial but treated the motion as a petition for belated appeal, finding a colorable claim of ineffective assistance of counsel based on trial counsel's failure to file a direct appeal after being requested to do so.
The trial court properly denied the Rule 3.850 motion because it lacked jurisdiction to consider a claim for belated appeal, which must be filed in the appellate court. However, Wiggins stated a colorable claim of ineffective assistance of counsel, and the appellate court treated the motion as a proper petition for belated appeal.
[1] A claim of ineffective assistance of counsel for failure to file a direct appeal after a timely request constitutes a colorable claim.
[2] A trial court lacks jurisdiction to consider a claim for a belated appeal; such petitions must be filed in the appellate court.
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 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 seeking belated appeal to be filed in the appellate court to which the appeal should have been taken)”
Establishes that trial courts lack jurisdiction over belated appeal petitions, which must be filed in the appellate court.
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Join FLexlaw to unlock all legal intelligenceWiggins filed a timely, sworn Rule 3.850 motion raising three claims. The first two claims were conclusively refuted by attachments to the trial court…
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PER CURIAM.
Ronnie Wiggins appeals an order of the trial court summarily denying his timely, sworn Florida Rule of Criminal Procedure 3.850 motion. We affirm the order, treat the motion as a proper request for a belated appeal, and remand with directions in accordance with Dubois v. State, 705 So. 2d 713 (Fla. 1st DCA 1998).
Without further need for discussion, we find that the trial court included attachments conclusively refuting the factual allegations in Wiggins’ first two claims. The third and final claim alleged that Wiggins’ court-appointed trial counsel had rendered ineffective 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 seeking belated appeal to be filed in the appellate court to which the appeal should have been taken); Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998) (en banc), approved, 739 So. 2d 77 (Fla.1999).
We have treated the facially sufficient motion as a petition for belated appeal under Rule 9.140(j). McLaurn v. State, 722 So. 2d 935 (Fla. 1st DCA 1998); Buie v. State, 709 So. 2d 655 (Fla. 1st DCA 1998); Hammond. We directed the State to show cause why the appellant should not be granted a belated appeal. The State’s response failed to present a good-faith factual basis for opposing the relief requested by the appellant. Wessells v. State, 737 So. 2d 1103 (Fla. 1st DCA 1998) (on mot. for reh’g); Schubert, 737 So. 2d at 1102 n. 1.
We grant the request for a belated appeal and remand to the trial court with directions to follow the procedures set forth in Dubois:
Within thirty days of the date of the mandate in this case, appellant’s trial counsel shall file a notice of appeal, as required by Florida Rule of Appellate Procedure 9.140(b)(5). Should trial counsel fail to comply, this court’s mandate will be treated as the notice of appeal. See Fla. R.App. P. 9.140(j)(5)(D). If appellant qualifies for appointed counsel, the trial court shall appoint counsel to represent appellant on appeal.
705 So. 2d at 713.
AFFIRMING and REMANDING with directions.
ALLEN, BENTON and BROWNING, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brigham v. State, 769 So. 2d 1100 (Fla. 1st DCA 2000)…ctual representations made under oath by appellant. See, Dubois v. State, 705 So. 2d 713 (Fla. 1st DCA 1998). Nor does the state’s response present a good-faith factual basis for opposing the relief requested by the appellant. See, Wiggins v. State, 745 So. 2d 540 (Fla. 1st DCA 1999). Accordingly, we find that petitioner has established the right to obtain a belated appeal from the March 29, 2000, order denying defendant’s motion for post-conviction relief in Liberty County case number 39-97-01-CFA. The tria…
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Sury v. State, 750 So. 2d 152 (Fla. 1st DCA 2000)…o comply, this court’s mandate will be treated as the notice of appeal. See Fla. RApp. P. 9.140(j)(5)(D). If appellant qualifies for appointed counsel, the trial court shall appoint counsel to represent appellant on appeal. Id.; Wiggins v. State, 745 So. 2d 540 (Fla. 1st DCA 1999). AFFIRMED and REMANDED, with directions. BOOTH, KAHN and BROWNING, JJ., CONCUR.…
Authorities Cited
- State v. Trowell, 739 So. 2d 77 (Fla. 1999)
- Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998)
- Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998)
- Hudson v. State, 596 So. 2d 1213 (Fla. 1st DCA 1992)
- Wessells v. State, 737 So. 2d 1103 (Fla. 1st DCA 1998)
- Renny Ray Dubois v. State, 705 So. 2d 713 (Fla. 1st DCA 1998)
- Funchess v. State, 705 So. 2d 713 (Fla. 1st DCA 1998)
- Randell W. Hammond v. State, 706 So. 2d 73 (Fla. 1st DCA 1998)
- Gibson v. State, 709 So. 2d 655 (Fla. 1st DCA 1998)
- McLAURN v. State, 722 So. 2d 935 (Fla. 1st DCA 1998)