ELTON RUMPH, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Elton Rumph petitioned for a belated appeal of his Bay County Circuit Court conviction and sentence. The court granted the petition, finding that exceptional circumstances—namely, Rumph's timely attempt to direct his trial counsel to appeal that never reached counsel—warranted allowing the late appeal despite the absence of ineffective assistance of counsel.
A belated appeal may be granted based on exceptional circumstances that rendered the ordinary appellate process unavailable, even without a showing of ineffective assistance of counsel. Where a defendant timely attempts to direct counsel to appeal and the correspondence fails to reach counsel, this constitutes an exceptional circumstance warranting a belated appeal.
[1] A belated appeal may be granted where exceptional circumstances render the ordinary appellate process unavailable, even if trial counsel did not render ineffective assist…
[2] Failure of a defendant's correspondence expressing a desire to appeal to reach trial counsel can constitute an exceptional circumstance warranting a belated appeal.
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“a belated appeal may also be granted where it is found that other exceptional circumstances have rendered the ordinary appellate process unavailable”
Establishes that belated appeals are not limited to ineffective assistance cases but may be granted for exceptional circumstances
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRumph was convicted and sentenced in Bay County Circuit Court on or about April 16, 1996. Shortly after sentencing, Rumph mailed a letter to his trial…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Elton Rumph petitions this court for a belated appeal of a judgment and sentence of the Bay County Circuit Court.
Pursuant to this court’s direction, an evidentiary hearing was conducted before a special master, who found that although Rumph timely attempted to direct his trial counsel to pursue an appeal through a letter mailed shortly after the sentencing hearing, that letter’ never reached counsel. Based on this finding, the special master recommends the granting of a belated appeal. Although the state accepts the special master’s findings of fact, it objects to his recommendation, arguing that the facts do not establish that trial counsel rendered ineffective assistance, since he was not informed of his client’s desire to initiate an appeal. While we agree with the state that the facts do not support the conclusion that trial counsel was ineffective in this circumstance, Rumph’s entitlement to a belated appeal is not dependent solely upon a showing that trial counsel was ineffective. Rather, although an error by counsel may give rise to a right to a belated appeal, a belated appeal may also be granted where it is found that other exceptional circumstances have rendered the ordinary appellate process unavailable. See, e.g., Offen v. State, 662 So. 2d 742 (Fla. 4th DCA 1995).
Belated appeals have thus been granted where, for example, it is established that a copy of the order being appealed was not timely received, or that a notice of appeal mailed by an incarcerated defendant was never received by the lower tribunal. See, e.g., Battles v. State, 739 So. 2d 740 (Fla. 1st DCA 1999); Rozar v. State, 701 So. 2d 1201 (Fla. 5th DCA 1997).
In light of the special master’s finding in this case that Rumph timely attempted to communicate a desire to appeal to his counsel, we find that counsel’s failure to initiate an appeal because he did not receive his client’s correspondence constitutes an exceptional circumstance warranting the granting of a belated appeal.
Accordingly, the petition seeking a belated appeal of the judgment and sentence imposed on or about April 16, 1996, in Bay County Circuit Court Case No. 95-2651, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment of as a notice of appeal. Fla. R.App. P. 9.140(j)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.
LAWRENCE, DAVIS and VAN NORTWICK, JJ„ concur.
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Citator
Cited By
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Brock v. State, 947 So. 2d 1190 (Fla. 1st DCA 2007)…Brock is entitled to a belated appeal, and that there is no need for an evidentiary hearing. If Brock’s timely letter did not reach counsel, this exceptional circumstance is sufficient to warrant the granting of a belated appeal. See Rumph v. State, 746 So. 2d 1249 (Fla. 1st DCA 1999). An evidentiary hearing would be required only if the state established a good faith basis for disputing Brock’s sworn allegation that he timely mailed the letter requesting an appeal. See Schubert v. State, 737 So. 2d 1102 (Fla.…
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Carswell v. State, 46 So. 3d 99 (Fla. 1st DCA 2010)…eal is supported by competent substantial evidence, that finding is not dis-positive since if such a letter was properly mailed, counsel’s failure to receive and act on it would in itself warrant the granting of a belated appeal. See Rumph v. State, 746 So. 2d 1249 (Fla. 1st DCA 1999); see also Brock v. State, 947 So. 2d 1190 (Fla. 1st DCA 2007). The special master’s amended report and recommendation fails to identify any evidence refuting petitioner’s sworn testimony that he timely mailed the letter, nor does…
Authorities Cited
- Offen v. State, 662 So. 2d 742 (Fla. 4th DCA 1995)
- Rozar v. State, 701 So. 2d 1201 (Fla. 5th DCA 1997)
- Battles v. State, 739 So. 2d 740 (Fla. 1st DCA 1999)