ALBERT ROGERS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court denied Rogers' petition for a belated appeal from the denial of a postconviction motion due to ineffective assistance of postconviction counsel, but certified a question of great public importance to the Florida Supreme Court regarding whether ineffective postconviction counsel can excuse a late notice of appeal.
A belated appeal from the denial of a postconviction motion cannot be granted based on ineffective assistance of postconviction counsel, but the question of whether such ineffectiveness should excuse a late notice of appeal is certified to the Florida Supreme Court.
[1] Ineffective assistance of postconviction counsel presents a question of great public importance regarding whether it excuses the failure to timely file a notice of appeal…
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Join FLexlaw to unlock all legal intelligenceAlbert Rogers sought a writ of habeas corpus requesting a belated appeal from the denial of a postconviction motion, claiming his notice of appeal was…
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PER CURIAM.
Albert Rogers petitioned this court for a writ of habeas corpus requesting a belated appeal from the denial of a postconviction motion due to ineffective assistance of postconviction counsel. This court denied his request, relying on the holding in Diaz v. State, 724 So. 2d 595 (Fla. 2d DCA 1998), that such relief was not appropriate in a question involving postconviction counsel. Rogers filed a motion for rehearing requesting this court certify a question to the Florida Supreme Court. We grant Albert Rogers’ motion for rehearing. We deny Rogers’ petition for writ of habeas corpus, but certify a question of great public importance. We certify to the supreme court the same question that we certified in Williams v. State, 24 Fla. L. Weekly D1927, — So. 2d -, 1999 WL 638523 (Fla. 2d DCA Aug. 20, 1999):
DOES THE HOLDING IN LAM-BRIX V. STATE, 698 S0.2D 247 (FLA1996), WHEN CONSIDERED IN LIGHT OF THE SUPREME COURT OF FLORIDA’S PRONOUNCEMENT IN STEELE V. KE-HOE, 724 S0.2D 1192 (FLA.[5 DCA] 1999), FORECLOSE THE PROVISION OF A BELATED APPEAL FROM THE DENIAL OF A POST-CONVICTION MOTION WHEN THE NOTICE OF APPEAL WAS NOT TIMELY FILED DUE TO THE INEFFECTIVENESS OF COUNSEL IN THE COLLATERAL PROCEEDING?
Motion for rehearing granted, petition to file belated appeal denied, question certified.
PARKER, A.C.J., and WHATLEY and SALCINES, JJ., Concur.
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Cited By
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Lynwood Williams v. State, 777 So. 2d 947 (Fla. 2000)…a belated appeal from the denial of a postconvietion motion when the notice of appeal was not timely filed due to ineffectiveness of counsel in the collateral proceeding? Williams v. State, 763 So. 2d 1069, 1070 (Fla. 2d DCA 1999); Rogers v. State, 752 So. 2d 657, 657 (Fla. 2d DCA 2000). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question [*949] in the negative, holding the issue governed by our decision in Steele. The petitioners seek leave to file belated appeals from the…1 / 2
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Cheatham v. Decker, 751 So. 2d 176 (Fla. 1st DCA 2000)…he circuit court denying his petition for writ of habeas corpus. Prior to filing this petition, Cheatham instituted an appeal of this same order in Case No. 1D99-3731. We recently dismissed that appeal for lack of jurisdiction in Cheatham v. Decker, 752 So. 2d 657 (Fla. 1st DCA 2000). We dismiss this petition for the same reason, although we note that wholly apart from the timeliness issue, this case would be subject to dismissal inasmuch as it is dupli-cative of the proceeding in Case No. 1D99-3731. LAWREN…
Authorities Cited
- Diaz v. State, 724 So. 2d 595 (Fla. 2d DCA 1998)