ANTHONY EDWARDS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that the petition for belated appeal was timely filed under the new appellate rules, even though the original time limit under the criminal procedure rule had expired.
[1] A petition for belated appeal is timely if filed within two years of the effective date of Florida Rule of Appellate Procedure 9.140(j), even if the underlying claim woul…
[2] Claims regarding a trial counsel's failure to file a notice of appeal are cognizable under Florida Rule of Criminal Procedure 3.850.
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Join FLexlaw to unlock all legal intelligencePetitioner sought a belated appeal, claiming his trial counsel failed to file a notice of appeal after being requested to do so. The state argued the …
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PER CURIAM.
Anthony Edwards seeks a belated appeal from judgment and sentence of the Circuit Court for Duval County. According to petitioner, he timely requested his trial counsel to file a notice of appeal and that request was not honored.
The state opposes the petition, contending that it is untimely.
We find this contention to be without merit. The judgment and sentence were rendered in April 1996 and, at that time, petitioner’s claim would have been cognizable pursuant to Florida Rule of Criminal Procedure 3.850. See State v. District Court of Appeal, First District, 569 So. 2d 439 (Fla.1990).
Rule 3.850(b) places a two year time limit on such claims.
However, before that time expired in petitioner’s case, Florida Rule of Appellate Procedure 9.140(j) was adopted effective January 1, 1997. This shifted jurisdiction of claims of this nature from the trial courts to the appellate courts and also implemented a two year time limit but rule 9.140(j)(3)(C) provides that “[t]ime periods under this subdivision shall not begin to run prior to the effective date of this rule.” Thus, the instant petition, which was filed in July of 1998,1 was timely. The state’s reliance on Finch v. State, 717 So. 2d 1070 (Fla. 1st DCA 1998) is misplaced because there, unlike the instant case, the time for raising the claim pursuant to Rule 3.850 had expired prior to Rule 9.140(j) becoming effective.
Petitioner has made a showing of entitlement to relief, State v. Trowell, 739 So. 2d 77 (Fla.1999), and respondent has failed to create an issue of fact which would require a hearing. Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998). Accordingly, the petition for belated appeal from judgment and sentence in Duval County case number 95-01111-CF is granted. Upon issuance of mandate in this cause, a copy of the opinion shall be provided to the clerk of the lower tribunal for treatment as a notice of appeal. Fla. RApp. P. 9.140(j)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.
BARFIELD, C.J., MINER and ALLEN, JJ., concur. . Consideration of this petition on its merits was stayed by this court until final disposition of State v. Trowell, 739 So. 2d 77 (Fla.1999).
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Turner v. State, 745 So. 2d 535 (Fla. 1st DCA 1999)…barred because it was not timely raised in a motion for post-conviction relief. We disagree. To the extent the petition relies upon a theory of ineffective assistance of trial counsel, we find it to be timely under the rationale of Edwards v. State, 745 So. 2d 1060 (Fla. 1st DCA 1999). Petitioner’s second theory, that the trial court failed to inform him of his right to appeal, would also entitle him to relief. Baker v. State, 224 So. 2d 331 (Fla. 1st DCA 1969). Since this claim was never cognizable through a…
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Autumn Shere Woodard v. Moore, 745 So. 2d 1143 (Fla. 1st DCA 1999)…al from a judgment and sentence entered in July 1995. According to Woodard, her trial attorney did not honor a timely request that an appeal be filed. The state opposes the petition, arguing that it is time barred. We disagree. See Edwards v. State, 745 So. 2d 1060 (Fla. 1st DCA 1999). The respondent’s opposition to the petition is limited to its timeliness argument and we find accordingly that petitioner is entitled to the belated appeal she seeks. Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998). The…
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Richardson v. Moore, 747 So. 2d 486 (Fla. 1st DCA 2000)…mely requested his trial attorney to take an appeal from judgment and sentence and that request was not honored. The state opposes the petition solely on the ground that it is untimely but we find this argument to be without merit. Edwards v. State, 745 So. 2d 1060 (Fla. 1st DCA 1999). The petition for belated appeal from judgment and sentence in Dixie County case number 95-104 CF is granted. Upon issuance of mandate in this cause, a copy of the opinion shall be provided to the clerk of the circuit court for…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Dist. Court of Appeal of Fla., 569 So. 2d 439 (Fla. 1990)
- State v. Trowell, 739 So. 2d 77 (Fla. 1999)
- Schubert v. State, 737 So. 2d 1102 (Fla. 1st DCA 1998)
- Hendrix v. Singletary, 717 So. 2d 1070 (Fla. 1st DCA 1998)
- Finch v. State, 717 So. 2d 1070 (Fla. 1st DCA 1998)