LARRY PRICE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Larry Price sought a belated appeal claiming his trial counsel gave him erroneous legal advice that an appeal could result in retrial on more serious charges, causing him to waive his appellate rights. The court found this constituted ineffective assistance of counsel and granted the petition for a belated appeal.
The court granted the petition, finding that counsel's erroneous advice regarding potential retrial on more serious charges constituted ineffective assistance of counsel, and that this claim was cognizable in a petition proceeding rather than requiring a separate rule 3.850 motion.
[1] A belated appeal may be granted when a defendant is advised by counsel that a successful appeal could result in retrial on more serious charges, causing the defendant to…
[2] Erroneous legal advice from counsel regarding the risks of appeal constitutes ineffective assistance of counsel.
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“counsel erroneously informed him that should he prevail in the appeal of his conviction, he could be retried on the more serious charges”
Establishes the erroneous legal advice that constituted the basis for the ineffective assistance claim
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Join FLexlaw to unlock all legal intelligencePrice was charged with more serious felony offenses but was convicted only of a third-degree felony, a lesser-included offense. When Price asked his t…
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Petitioner seeks a belated appeal based upon ineffective assistance of trial counsel. He alleges that his counsel gave him incorrect legal advice regarding the purported risk of an appeal, causing him to waive his right to appeal. We grant the petition.
Petitioner alleges that, although charged and tried on more serious felony offenses, he was only convicted of a third-degree felony, a lesser-included offense of one of the charged offenses. When he inquired of counsel regarding the viability of an appeal, counsel erroneously informed him that should he prevail in the appeal of his conviction, he could be retried on the more serious charges. Based upon this erroneous advice of a potentially serious risk, Petitioner claims 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 ineffective assistance of counsel. Instead, the State makes a vague suggestion that Petitioner’s claim should be brought in a rule 3.850 proceeding. It offers no authority or logic for this suggestion, and it makes no attempt to distinguish Walker v. State, 742 So.2d 342 (Fla. 3d DCA 1999), which Petitioner properly cited in his petition for the proposition that his claim is cognizable in a proceeding of this nature. See also Bab *542 son v. Wainwright, 376 So.2d 1187 (Fla. 5th DCA 1979) (cited by Petitioner in his reply). We cannot envision any legitimate justification for imposing this additional procedural hurdle with its concomitant delays and increased burden on judicial resources.
Accordingly, we grant the petition. A copy of this opinion shall be filed in the lower court and treated as the Notice of Appeal from the judgment and sentence in lower court case number 2009-CF-009745-A-O, in the Circuit Court in and for Orange County, Florida.
PETITION GRANTED.
MONACO, C.J. and GRIFFIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Walker v. State, 742 So. 2d 342 (Fla. 3d DCA 1999)
- Babson v. Louie L. Wainwright, 376 So. 2d 1187 (Fla. 5th DCA 1979)
- Dalzell v. State, 922 So. 2d 247 (Fla. 5th DCA 2006)