TERRY W. VAUGHN, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Terry Vaughn petitioned for a belated appeal of his 1990 guilty plea conviction after a federal court found that his counsel failed to file a notice of appeal despite his specific request. The Florida appellate court granted the petition, holding that ineffective assistance of counsel in failing to file a requested appeal constitutes grounds for belated appeal even when a defendant has waived appellate rights through a guilty plea.
The court granted Vaughn's petition for belated appeal. Under State v. Trowell, appellate courts must grant a petition seeking belated appeal when the defendant alleges that a timely request to counsel to file the notice of appeal was made and counsel failed to do so, regardless of whether the defendant initially waived appellate rights through a guilty plea.
[1] A petition for belated appeal should be granted when a defendant alleges that counsel failed to file a notice of appeal after being requested to do so.
[2] The failure of counsel to file a notice of appeal upon a defendant's request constitutes ineffective assistance of counsel as a matter of law, even when the defendant has…
Previewing 2 of 5 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“grant a petition seeking belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so.”
Establishes the legal standard from State v. Trowell for granting belated appeals based on counsel's failure to file a requested appeal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceVaughn was convicted and sentenced pursuant to a guilty plea in 1990 in case number 90-29525. In 2003, Vaughn filed a federal habeas petition claiming…
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FLETCHER, Judge.
We grant Terry W. Vaughn’s petition for belated appeal. Vaughn was convicted and sentenced pursuant to a guilty plea in 1990. In 2003, Vaughn filed a habeas petition in the Federal District Court for the Southern District of Florida. The District Court granted the petition, and the State of Florida appealed. The United States
Court of Appeals for the Eleventh Circuit affirmed. The Final Judgment from that Court directs the courts of Florida to allow Vaughn to pursue a direct appeal from the judgment and conviction following his guilty plea in case number 90-29525.
Pursuant to State v. Trowell, 739 So. 2d 77 (Fla.1999), the appellate courts should “grant a petition seeking belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so.” The Trowell court’s holding is “consistent with federal court opinions holding that although a defendant pleaded guilty, the failure of counsel to file notice of appeal upon request constituted ineffective assistance of counsel as a matter of law.” Trowell at 81 (citations omitted), [e.s.] This is so despite the defendant’s having entered into a negotiated guilty plea and expressly waived the right to appeal matters relating to the judgment. See Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998).1
In this case, the Federal District Court found that Vaughn specifically requested that counsel file a direct appeal, and that counsel failed to do so. This finding and judgment, coupled with Trowell’s holding, compels us to grant Vaughn’s motion for belated direct appeal. We note that “the belated appeals of defendants who pleaded guilty or nolo contendere, however, will be subject to dismissal or an affirmance if there is no reviewable error” and “this disposition will occur after a defendant has been granted the assistance of counsel to ascertain whether any meritorious issues exist and to present these issues to the appellate court.” Trowell at 81.
We therefore grant Vaughn’s motion for belated direct appeal from conviction and sentence, and order appointment of the public defender to review the file and to brief the meritorious issues, if any. Walker at 343; Libretti v. State, 854 So. 2d 804 (Fla. 2d DCA 2003)(absolute right to counsel attaches for an appeal of judgment and sentence).
This opinion shall serve as a timely notice of appeal from the judgment and sentence. The circuit court clerk shall promptly certify this opinion and return it to this Court. Upon receipt of the certified opinion a new appellate case number will be assigned to the appeal. Upon receipt of the acknowledgement letter of the new appeal, the Public Defender shall forthwith file the necessary motions to cause the transcript of testimony to be transcribed and filed and the appeal shall proceed in accordance with the Florida appellate rules governing criminal appeals.
Petition for belated appeal granted.
. In Gonzalez v. Singletary, 749 So. 2d 501 (Fla. 1999) the Florida Supreme Court, based on Trowell, quashed the Third District Court of Appeal's decision denying petitioner's request for belated appeal. In that case the petitioner had pleaded guilty and expressly waived his right to appeal. Similarly, in Walker v. State, 742 So. 2d 342 (Fla. 3d DCA 1999), the defendant pleaded guilty and waived right to an appeal. After sentencing, defendant asked his attorney to appeal and counsel informed him that because of the plea, he had given up his right to appeal the judgment and sentence. Nevertheless, the Third District Court of Appeal on rehearing determined that pursuant to Trowell and Gonzalez, it was obliged to grant the petitioner a belated appeal. Compare Jackson v. State, 871 So. 2d 297 (Fla. 3d DCA 2004)(petitioner entered guilty plea, waived right to appeal, but did not ask his attorney to file an appeal, thus petition for belated appeal denied).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Veal v. State, 895 So. 2d 1280 (Fla. 3d DCA 2005)…As the state correctly asserts, the trial court erred in denying defendant’s request for the assistance of counsel at resentencing, see, e.g., [*1281] Sanchez v. State, 866 So. 2d 218 (Fla. 3d DCA 2004), and on the appeal therefrom. Vaughn v. State, 888 So. 2d 679 (Fla. 3d DCA 2004); Libretti v. State, 854 So. 2d 804 (Fla. 2d DCA 2003). The trial court shall vacate defendant’s sentence and appoint counsel to represent defendant on resentencing. Reversed and remanded.…
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Perez v. State, 898 So. 2d 186 (Fla. 5th DCA 2005)…s that his trial counsel informed him that he had waived his right to appeal when he entered his guilty plea. Even if a defendant pleads guilty, he is entitled to an appeal if he timely asks counsel to file a notice of appeal. See Vaughn v. State, 888 So. 2d 679 (Fla. 3d DCA 2004) (holding that a petition for belated appeal will be granted even where a defendant entered a negotiated guilty plea and expressly waived the right to appeal matters relating to the judgment if it is shown that the defendant specif…
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Parrish v. State, 194 So. 3d 573 (Fla. 3d DCA 2016)…ered a written report determining that Parrish had not directed his attorney to file an appeal. Upon review of the commissioner’s report and the transcript of the evidentiary hearing, we deny the petition to file a belated appeal. Vaughn v. State, 888 So. 2d 679, 680 (Fla. 3d DCA 2004); Fla. R. App. P. 9.141 (c)(4)(F)(i). Petition denied.…
Authorities Cited
- State v. Trowell, 739 So. 2d 77 (Fla. 1999)
- Trowell v. State, 706 So. 2d 332 (Fla. 1st DCA 1998)
- Walker v. State, 742 So. 2d 342 (Fla. 3d DCA 1999)
- Gonzalez v. Singletary, 749 So. 2d 501 (Fla. 1999)
- Libretti v. State, 854 So. 2d 804 (Fla. 2d DCA 2003)
- Severino Ramos v. State, 854 So. 2d 804 (Fla. 2d DCA 2003)
- Miami-Dade Cnty. v. Fla. Unemployment Appeals Comm'n, 871 So. 2d 297 (Fla. 3d DCA 2004)
- Jackson v. State, 871 So. 2d 297 (Fla. 3d DCA 2004)