STEVEN FLOWERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant may be entitled to file a belated motion for post-conviction relief if their attorney frustrates their intention to file such a motion in a timely fashion.
[1] A defendant may be entitled to file a belated motion for post-conviction relief if their attorney frustrates their intention to file such a motion in a timely fashion.
[2] A trial court must conduct an evidentiary hearing when a petition for writ of habeas corpus raises a factual issue regarding whether retained counsel frustrated the defen…
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Join FLexlaw to unlock all legal intelligenceThe defendant alleged he retained private counsel to file a post-conviction relief motion, but the attorney failed to do so and withheld necessary doc…
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PER CURIAM.
The defendant appeals the denial of his petition for writ of habeas corpus. His petition requested the trial court to consider a belated motion for post-conviction relief and alleged that his privately-retained counsel had neglected to file the motion in a timely manner. The trial court summarily denied the petition. We reverse.
A defendant “might be entitled to file a belated motion for post-conviction relief if the actions of [his] attorney [frustrate his] intention to file such a motion in a timely fashion.” See Ward v. Dugger, 508 So. 2d 778, 779 (Fla. 1st DCA 1987). In this case, the defendant alleged he retained private counsel to file a motion for post-conviction relief, but his attorney failed to do so. The record indicates the attorney advised the defendant he would not be doing any more work for the defendant because he had not been paid. The defendant received this information in sufficient time for the defendant to timely file the motion. Thus, it would appear that the trial court properly denied the petition.
However, the petition also alleged that the attorney “frustrated appellant’s intentions to file a post conviction motion on his own behalf, by counsel receiving and being totally uncooperative in not returning [sic] appellant with his transcripts and documents concerning his case, that would be helpful in drafting his motion, after counsel agreed, but failed to file a timely post conviction claim against his revocation counsel.... ” This allegation raises a factual issue not refuted by the record. We therefore reverse and remand the case for the trial court to conduct an evidentiary hearing to determine whether appellant retained counsel to timely file a Florida Rule of Criminal Procedure 3.850 motion; and if so, whether retained counsel frustrated the defendant’s ability to file his own motion by withholding records once counsel advised the defendant he would not be doing any further work for him. See Id.
FARMER, C.J., GUNTHER and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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DE LA Rosa v. State, 979 So. 2d 1089 (Fla. 3d DCA 2008)…t he did not prove that the two attorneys, through neglect, failed to file a timely motion for postconviction relief. We disagree as the trial court’s finding is supported by the evidence and testimony presented at the hearing. See Flowers v. State, 889 So. 2d 123 (Fla. 4th DCA 2005). Next, De La Rosa contends that even if this Court concludes that he failed to establish that he is entitled to a belated rule 3.850 motion, the trial court erred by denying several grounds of his motion as time barred where the…
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Clay Robinson v. State, 44 So. 3d 136 (Fla. 4th DCA 2010)…the Rule 3.850(b)(3) exception and recognizing that the attorney’s neglect must be the proximate cause of motion’s untimeliness).1 Appellant does not allege that retained counsel frustrated his ability to timely file a motion. Cf. Flowers v. State, 889 So. 2d 123 (Fla. 4th DCA 2004). See also Ward v. Dugger, 508 So. 2d 778, 779 (Fla. 1st DCA 1987) (concluding that prisoner “might be entitled to file a belated motion for postconviction relief if the actions of her attorney had frustrated her intention to file…
Authorities Cited
- Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987)