CHERI L. HASTINGS

v.

STATE OF FLORIDA

1 This Court has not yet determined whether an assertion that counsel cannot recall a client requesting an appeal, without more, is sufficient to create a disputed issue of fact. 9.141(c); State v. Trowell, 739 So. 2d 77 (Fla. 1999); see generally Oliver v. State, 834 So. 2d 910 (Fla. 5th DCA 2003). The Commissioner’s report shall be forthwith transmitted to this Court upon expiration of the remand period. EISNAUGLE, J., concurs. COHEN, J., dissents, with opinion. Case No. 5D22-0076 LT Case Nos. 2020-CF-314-AXMX 2020-CF-313-AXMX 2020-CF-316-AXMX 2020-CF-315-AXMX 2019-CF-2037-AXMX COHEN, J., dissenting. I respectfully dissent from the majority’s decision to appoint a commissioner. 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 commissioner to conduct an evidentiary hearing.” (emphasis added) (citations omitted)). Moreover, denying a defendant’s petition for belated appeal should be a rare occurrence. See State v. Trowell, 739 So. 2d 77, 81 n.5 (Fla. 1999). A response from Hastings’ counsel that he merely did not recall her requesting that he file an appeal is far different than an affirmative denial that such a request was ever made. See Schubert v. State, 737 So. 2d 1102, 1103 (Fla. 1st DCA 1998) (appointing commissioner to conduct evidentiary hearing where State indicated counsel had affirmatively disputed that petitioner asked counsel to file notice of appeal). While recognizing a number of cases contrary to their resolution of this matter, the majority disregards those cases, relying instead on Monlyn v. State, 894 So. 2d 832 (Fla. 2004). That case is inapposite. First, Monlyn addressed an ineffective assistance of counsel claim rather than a petition for belated appeal—clearly the two inquiries involve discrete analyses, where the former places the burden on the defendant and the latter on the State. Second, the cases are procedurally incongruous, as Monlyn reflects on testimony presented at an evidentiary hearing while here we contemplate whether there is a factual dispute sufficient to require a hearing at all. And third, counsel’s testimony in Monlyn was far more definitive. Upon addressing Monlyn’s allegation that counsel had failed to advise him of his right to testify, counsel not only testified that he did not recall the conversation at issue, he also unequivocally stated that his standard practice was to discuss the right to testify with the client “in each and every case.” Id. at 837. When asked if he “probably” followed that practice with Monlyn, counsel responded, “Not probably. I did it.” Id. Counsel’s response in this case suggested nothing of the sort. Instead, the majority assumes that similar evidence of counsel’s compliance with customary procedure will emerge at the ordered hearing. Such speculation should not provide sufficient grounds to grant the State’s request for a commissioner.1 Furthermore, the majority opines that given the passage of time and “other circumstances,” counsel may have been “understandably hesitant” to categorically refute that Hastings requested he file an appeal. However, attorneys routinely document such requests, and if counsel had responded that it was his general practice to note when a client requested an appeal, even if he had no specific recollection, we would appropriately appoint a commissioner to resolve that dispute. The majority apparently believes that while counsel might be “understandably hesitant” to specifically dispute Hastings’ sworn allegation at this stage, counsel’s memory will miraculously improve once he is placed under oath at an evidentiary hearing. This is not just an academic exercise. Ordering appointment of a commissioner requires the trial court to set aside time from an already crowded docket to set an evidentiary hearing. The trial court must then 1 Nor is that the majority’s only assumption. Although it is undisputed that counsel stated he did not recall Hastings’ request that he file an appeal, the majority declares that he “would have recalled” the request—if there had been one—given his recollection of other aspects of their postconviction conversation. Again, such an assumption creates a dispute where one does not exist. prepare an order transporting the defendant, in this case from the Department of Corrections, which must bear the costs and security risks inherent in moving the inmate. Then, the defendant must be housed in a local jail until the hearing is conducted. After the evidentiary hearing, the court must enter the accompanying order and issue another order to return the defendant to the Department of Corrections—again with the attendant costs and risks. All these tasks consume time and taxpayer funds. The State provides no authority, and it appears that none exists, for the proposition that an attorney’s failure to recall whether an appeal was requested constitutes a good faith basis for disputing the defendant’s claims. The majority’s ruling in this case effectively lowers the State’s burden. Accordingly, I would deny the State’s request to appoint a commissioner and grant Hastings’ petition for belated appeal.