CARMEN KRASNICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carmen Krasnick appealed the denial of her habeas corpus petition seeking to file a belated postconviction motion based on her attorney's failure to timely file. The court reversed, holding that absent Supreme Court precedent imposing automatic time limits, and given that laches involves factual issues, an evidentiary hearing was required.
The court reversed the trial court's denial and held that the Supreme Court has not imposed an automatic laches period or time limit for filing habeas petitions seeking leave to file belated postconviction motions, and that an evidentiary hearing is required to address whether the appellant retained counsel to file a timely postconviction motion and whether counsel failed to do so.
[1] A petition for writ of habeas corpus seeking leave to file a belated motion for postconviction relief based on attorney's failure to file a timely motion is not automatic…
[2] The doctrine of laches may not be raised for the first time on appeal.
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Join FLexlaw to unlock all legal intelligence“The supreme court did not impose a time limit or an automatic laches period applicable to the filing of a petition for habeas corpus for leave to file a belated postconviction motion in Steele or in Medrano and we decline to do so at this time.”
Establishes the court's holding that no automatic time limit exists for such habeas petitions, distinguishing the case from prior precedent imposing presumptions in other contexts.
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Join FLexlaw to unlock all legal intelligenceKrasnick sought a habeas corpus petition to file a belated postconviction motion, alleging that an attorney she retained failed to file the motion tim…
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PER CURIAM.
Carmen Krasnick (Petitioner) appeals the trial court’s order denying her petition for writ of habeas corpus, in which she sought a hearing to determine whether she was entitled to file a belated motion for postconviction relief based on the failure of her attorney to file a timely motion. See Steele v. Kehoe, 747 So. 2d 931 (Fla.1999); Medrano v. State, 748 So. 2d 986 (Fla.1999); and Quigley v. State, 753 So. 2d 764 (Fla. 4th DCA 2000). We reverse.
The state argues that the denial should be affirmed because Petitioner’s petition was barred by laches, in that it was not filed until December 14, 1999, five years and three months after the attorney she claimed she retained to file her motion was permitted to withdraw from representing her. The state relies on McCray v. State, 699 So. 2d 1366 (Fla.1997), in which the supreme court concluded as a matter of law that five years delay in filing a petition claiming ineffective assistance of appellate counsel is presumed unreasonable, to be overcome only by allegations under oath showing a factual basis why the petitioner was affirmatively misled about the results of the appeal.
The supreme court did not impose a time limit or an automatic laches period applicable to the filing of a petition for habeas corpus for leave to file a belated postconviction motion in Steele or in Me-drano and we decline to do so at this time. Moreover, we note that the state did not raise the doctrine of laches below, see State v. Richardson, No. 3D99-2400, 2000 WL 873214 (Fla. 3d DCA July 5, 2000) (declining to consider state’s laches defense, raised for the first time on appeal), and we point out that application of the doctrine often involves factual issues not properly resolved without an evidentiary hearing, see Perry v. State, 25 Fla. L. Weekly D541, 2000 WL 220426, — So. 2d - (Fla. 1st DCA Feb.28, 2000), rev. granted, 767 So. 2d 461 (Fla.2000). Further, the state’s argument on this point is merely conclusory and does not demonstrate in what way Appellant’s delay prejudiced it.
Although the facts of Quigley v. State were not discussed in this court’s brief opinion, this court’s files indicate that Quigley’s habeas petition, filed with the circuit court on January 4, 1999, alleged that he retained counsel in 1985 to file a postconviction motion by the January 1, 1986, deadline, but counsel failed to file such a motion prior to that deadline. This court reversed the trial court’s order dismissing the petition and remanded for a hearing pursuant to Steele and Medrano.
Accordingly, we reverse the trial court’s denial of the petition and remand for the trial court to conduct an evidentiary hearing addressing whether Appellant retained counsel to file a timely postconviction motion and whether counsel failed to timely do so.
WARNER, C.J., POLEN and HAZOURI, JJ„ concur.
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LaMarr Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002)…’s claim was barred by laches, in that the state is prejudiced in responding because no transcripts of the 1987 proceeding exist. Because it was not asked to respond below, the state did not raise the doctrine of laches below. See Krasnick v. State, 780 So. 2d 1045, 1046 (Fla. 4th DCA 2001) (declining to consider state’s laches defense, raised for the first time on appeal). A finding of laches in a criminal case requires a showing of both lack of due diligence on the part of the defendant in bringing the claim…
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Mills v. State, 901 So. 2d 939 (Fla. 4th DCA 2005)…determine whether Mills, through his mother and family friend, retained counsel to file a timely rule 3.850 motion, and whether counsel failed timely to file such a motion. See Medrano v. State, 748 So. 2d 986 (Fla.1999); Steele; Krasnick v. State, 780 So. 2d 1045 (Fla. 4th DCA 2001). Further, the state may present any evidence that would support their claim of laches. POLEN, GROSS and HAZOURI, JJ., concur.…
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Leisuris R. Galvez v. Ramos, 941 So. 2d 475 (Fla. 3d DCA 2006)…rida Rule of Civil Procedure 1.090(e), to file a motion for rehearing because the order was sent directly to Ramos, instead of his attorney. Generally, an appellate court cannot address claims raised for the first time on appeal. Krasnick v. State, 780 So. 2d 1045, 1046 (Fla. 4th DCA 2001). Certainly, there are exceptions to this general [*478] rule. However, we find that there are none applicable to the case before us. In addition, Florida law is clear that the time for service of a motion for rehearing is…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999)
- Ervin McCRAY v. State, 699 So. 2d 1366 (Fla. 1997)
- Acencion Medrano v. State, 748 So. 2d 986 (Fla. 1999)
- Quigley v. State, 753 So. 2d 764 (Fla. 4th DCA 2000)
- Reiss v. State, 753 So. 2d 764 (Fla. 4th DCA 2000)