BRADLEY E. DALZELL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Bradley Dalzell sought a belated appeal of his 2004 conviction and six-year sentence, arguing that he requested counsel to file a timely notice of appeal but counsel failed to do so. The Fifth District Court of Appeal granted his petition, finding it legally sufficient and interpreting the State's failure to specifically dispute the allegations as a concession.
The court granted Dalzell's petition for belated appeal, finding the petition legally sufficient and interpreting the State's failure to specifically dispute the allegations or request an evidentiary hearing as a concession of the factual allegations.
[1] A petition for a belated appeal is legally sufficient when it alleges that counsel failed to file a notice of appeal after being requested to do so by the defendant.
[2] In a proceeding for a belated appeal, the burden shifts to the State to specifically dispute the petitioner's allegations if the petition is legally sufficient.
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“In a belated appeal proceeding, if a petitioner files a legally sufficient petition, the burden shifts to the State to specifically dispute petitioner's allegations before it can request the appointment of a special commissioner to conduct an evidentiary hearing.”
Establishes the legal framework governing belated appeal petitions and the burden-shifting mechanism the court applies.
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Join FLexlaw to unlock all legal intelligenceDalzell was convicted on November 15, 2004, and sentenced to six years' incarceration. At sentencing, the court informed him he had 30 days to appeal.…
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THOMPSON, J.
Bradley E. Dalzell seeks a belated appeal of his judgment and sentence pursuant to Florida Rule of Appellate Procedure 9.141(c). Dalzell argues that he is entitled to a belated appeal because he requested and relied on counsel to file the notice of appeal, but the notice was not filed. Concluding that the petition is legally sufficient and that the State failed to dispute its allegations, we grant Dalzell’s petition for belated appeal.
Dalzell was convicted on 15 November 2004 and sentenced to six years’ incarceration. In his pro se petition, he claims that the court informed him at sentencing that he had 30 days to appeal. At that time, Dalzell asked counsel “repeatedly” about filing the notice of appeal, but counsel failed to do so.
On 9 November 2005, this court issued a show cause order requesting that the State respond. The procedure in this court has been that when the order is filed, the State contacts trial counsel to obtain his or her version of what transpired in order to file a written response. This time, however, the State submitted that conversations between a trial lawyer and his client relevant to ineffective assistance of counsel are not protected by the attorney-client privilege. Reed v. State, 640 So. 2d 1094 (Fla.1994).
Therefore, this court may order trial counsel to respond and thereafter decide whether to grant a belated appeal or order an evidentiary hearing. The procedure the State advocates was discussed and abandoned in Swain v. Moore, 744 So. 2d 592 (Fla. 2d DCA 1999). There, the Second District discussed whether the district court or the State should directly contact a criminal defense lawyer concerning a former client’s allegations in a petition for belated appeal. Id. at 593. Expressing some reservations, the court, citing State v. Trowell, 739 So. 2d 77 (Fla.1999), held that an appellate court should not order trial counsel to respond to a rule to show cause. Instead, the Second District ordered the attorney general to respond. Swain, 744 So. 2d at 593-94.
In a belated appeal proceeding, if a petitioner files a legally sufficient petition, the burden shifts to the State to specifically dispute petitioner’s allegations before it can request the appointment of a special commissioner to conduct an evidentiary hearing. See Trowell, 739 So. 2d at 81; Denson v. State, 710 So. 2d 144, 145 (Fla. 5th DCA 1998). In the response filed in this case, the assistant attorney general neither disputed petitioner’s allegations nor requested the appointment of a special commissioner. The State only requested this court take whatever action it deemed appropriate with regard to the petition. We interpret the State’s response to mean that it does not contest the allegations in the petition for belated appeal.
Thus, we grant Dalzell’s petition for belated appeal and, a copy of the opinion will be provided to the clerk of the circuit court to be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).
Accordingly, the petition for belated appeal is GRANTED.
SHARP, W. and ORFINGER, JJ., concur.
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Izquierdo v. State, 935 So. 2d 1243 (Fla. 5th DCA 2006)…for the amendment of a petition that fails to satisfy any provisions of this rule. However, this does not help Mr. Izquierdo. Accepting his allegations as true, he has not alleged a valid reason for obtaining a belated appeal. See Dalzell v. State, 922 So. 2d 247 (Fla. 5th DCA 2006) (holding that in a belated appeal proceeding, only if a petitioner files a legally sufficient petition, does the burden shift to the state to specifically dispute his allegations). No state action caused his failure to timely app…
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Price v. State, 45 So. 3d 541 (Fla. 5th DCA 2010)…that he waived his right to appeal. He subsequently learned that his counsel’s advice was erroneous and sought timely relief through this proceeding. The State’s response makes no attempt to refute these factual allegations.1 See Dalzell v. State, 922 So. 2d 247 (Fla. 5th DCA 2006) (State has burden to refute factual allegations to establish factual dispute for resolution by commissioner). Nor does the State refute the assertion that the purported advice was erroneous and, therefore, tantamount to ineffecti…
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Cheri L. Hastings v. State (Fla. 5th DCA 2022)…oner. In my view, counsel’s response that he did not recall Hastings’ request that he file an appeal is insufficient to specifically dispute her sworn affidavit to the contrary and, as such, the State has not met its burden. See Dalzell v. State, 922 So. 2d 247, 248 (Fla. 5th DCA 2006) (“In a belated appeal proceeding, if a petitioner files a legally sufficient petition, the burden shifts to the State to specifically dispute petitioner’s allegations before it can request the appointment of a special com…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Trowell, 739 So. 2d 77 (Fla. 1999)
- Grover Reed v. State, 640 So. 2d 1094 (Fla. 1994)
- Denson v. State, 710 So. 2d 144 (Fla. 5th DCA 1998)
- Swain v. Moore, 744 So. 2d 592 (Fla. 2d DCA 1999)