BRIAN ALLEN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 1st DCA | 1999-12-29
No. 99-1595
LAWRENCE, DAVIS and VAN NORTWICK, JJ„ concur.
746 So. 2d 1247 Florida District Court of Appeal, First District (1999) Positive Treatment
Cited by 5 cases

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Synopsis

Brian Allen petitioned for a belated appeal of his 1997 conviction and sentence, claiming his trial counsel ignored his requests to file a notice of appeal. The court denied the petition after an evidentiary hearing revealed Allen's sworn allegations were false, and imposed sanctions for presenting knowingly or recklessly false information to the court.


Holding

The petition for belated appeal was denied because Allen failed to establish that he timely communicated his desire to appeal either to his trial counsel or to the trial court, and sanctions were imposed under Florida Statutes section 944.28(2)(a) for presenting false information to the court.


Headnotes

[1] A petition for belated appeal may be denied when the petitioner fails to establish that they clearly communicated their intent to appeal to trial counsel within the presc…

[2] A petitioner's sworn statement to the court is binding, and they cannot avoid responsibility for false information by blaming an inmate law clerk.

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Key Quotes

“At that hearing, Allen conceded that although he wrote his trial counsel twice during the 30 days following sentencing, these letters did not include a request to initiate an appeal.”

Establishes that Allen's central factual claim—that he requested counsel file an appeal—was false.

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Facts & Procedural History

Allen was sentenced in September 1997 and had 30 days to file an appeal. He claimed he wrote his trial counsel multiple times requesting a notice of a…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Brian Allen petitions this court for a belated appeal of a September 1997 judgment and sentence of the Duval County Circuit Court. In support, he alleged in his sworn petition that during the 30 days following his sentencing, he wrote to this trial counsel on numerous occasions telling her that he wanted a notice of appeal filed on his behalf, but that this request was not honored. In addition, petitioner alleged that when advised by the trial court at sentencing that he had 30 days to institute an appeal, he notified the trial court at that point that he did wish to appeal his conviction and sentence. After the state established a good faith basis for disputing these claims, this court directed an evidentiary hearing be conducted before a special master. At that hearing, Allen conceded that although he wrote his trial counsel twice during the 30 days following sentencing, these letters did not include a request to initiate an appeal. In addition, although Allen reiterated his assertion that he advised the trial court of his desire to appeal, the special master found that a transcript of the sentencing proceeding did not corroborate this claim, and thus concluded that Allen did not advise the court he wished to initiate an appeal. Based upon this finding and Allen’s concession that his letters to counsel did not include a request to initiate an appeal, the special master recommends that the petition for belated appeal be denied.

Consistent with the special master’s findings and recommendation, we hereby deny the petition seeking belated appeal. In light of the special master’s findings, the state has filed a motion regarding sanctions pursuant to section 944.28(2)(a), Florida Statutes (1999). In his response to this motion, Allen does not dispute the fact that his sworn petition contained inaccurate information. Instead, he blames these inaccuracies on an allegedly ill-trained and unscrupulous inmate law clerk who assisted him in preparation of the petition. However, given the fact that Allen personally swore that the information contained in his petition was true and correct, we reject his attempt to avoid responsibility for his actions. Accordingly, the state’s motion regarding sanctions is granted, and in accordance with section 944.28(2)(a), we hereby certify that petitioner either knowingly or recklessly brought false information before the court in this proceeding. See Saucer v. State, 736 So. 2d 10 (Fla. 1st DCA 1998). We certify to the Florida Supreme Court the same question of great public importance certified in Saucer. See id. at 11.

Petition for belated appeal denied; motion for sanctions granted.

LAWRENCE, DAVIS and VAN NORTWICK, JJ„ concur.


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Citator

Cited By

  • Jones v. State, 18 So. 3d 551 (Fla. 1st DCA 2008)
    …ourt’s reliance on that representation resulted in a substantial expenditure of the court’s resources, as well as those of the Attorney General, we reject petitioner’s attempt to absolve himself of responsibility for his actions. See Allen v. State, 746 So. 2d 1247 (Fla. 1st DCA 1999). Accordingly, we hereby find that petitioner either knowingly or recklessly brought false information before the court in this proceeding, and in accordance with section 944.279(1), direct that a certified copy of this order be f…
  • Crum v. State, 264 So. 3d 1030 (Fla. 2d DCA 2019)
    …was true and correct and that the court's reliance on that representation resulted in a substantial expenditure of the court's resources . . . we reject petitioner's attempt to absolve himself of responsibility for his actions."); Allen v. State, 746 So. 2d 1247, 1247 (Fla. 1st DCA 1999) (rejecting the petitioner's attempt to blame inaccuracies on an "allegedly ill-trained and unscrupulous inmate law clerk" who assisted him given that the petitioner personally swore the information in his petition was tr…

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