BILLY HINTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Hinton appealed the denial of his post-conviction relief motion, which alleged that his public defender refused to file notice of appeal from his aggravated assault conviction. The court reversed and remanded for a hearing on whether the public defender's refusal to appeal denied Hinton his right to appellate review.
The court reversed the denial of post-conviction relief and remanded for a hearing specifically on the issue of whether the public defender refused to appeal, holding that if the trial court finds the defendant desired to appeal but was thwarted by the public defender's refusal, the trial court must reconsider other evidentiary contentions raised in the post-conviction motion on their merits.
“When an appeal is deliberately bypassed, such action can be conclusive and a basis for rejecting matters properly presentable for review on appeal, when they are proffered in a motion under Criminal Procedure Rule No. 1. But here the petitioner contends he desired to appeal but was prevented from taking one through insolvency, his personal inability, and refusal of the public defender to prosecute an appeal on his behalf.”
Establishes the distinction between deliberate bypassing of appeals versus situations where a defendant desired to appeal but was prevented by insolvency, inability, and public defender refusal
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Join FLexlaw to unlock all legal intelligenceHinton was convicted by jury of aggravated assault after pleading not guilty. He subsequently filed a post-conviction relief motion under Criminal Pro…
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This is an appeal from an order denying a motion for post-conviction relief under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix.
The appellant, on a plea of not guilty, was convicted by a jury of aggravated assault. In the course of the proceedings thereafter a motion for post-conviction relief was filed alleging various matters, which included the ground that the public defender, whose office represented the defendant, refused to file notice of appeal from his conviction.
The trial judge denied the motion and, from reading the record, we do not find that the public defender filed any defense touching this subject. The trial judge entered an order denying the motion and hence this appeal.
All the grounds of the appellant’s motion are denied except the ground that the public defender refused to appeal.
In Jackson v. State, Fla.App.3, 1964, 166 So.2d 194, the Third District had almost the identical question before it with the additional allegation that the public defender had refused to appeal when the petitioner, through deficiencies in education and lack of knowledge and procedure, was unable to take the appeal through his own efforts and could not take it otherwise because he was insolvent. In reversing the Jackson case, the court took occasion to say:
“ * * * When an appeal is deliberately bypassed, such action can be conclusive and a basis for rejecting matters properly presentable for review on appeal, when they are proffered in a motion under Criminal Procedure Rule No. 1. But here the petitioner contends he desired to appeal but was prevented from taking one through insolvency, his personal inability, and refusal of the public defender to prosecute an appeal on his behalf. * * *
* * * * * * *
“ * * * If the trial court concludes, on hearing with reference to the petitioner’s claim relating to appeal, that an appeal was not omitted under circumstances such as to amount to intentional relinquishment or an abandonment of the right to appeal, and that petitioner desired to appeal and was thwarted as he alleges, then *523•the trial court may again consider (as •on a delayed motion for new trial) the other listed contentions relating to evidentiary matters and incidents at the trial, and rule thereon as the merits of the several contentions may; require.”
Inasmuch as the trial judge’s rulings on all of the contentions raised by the appellant are affirmed, with the exception of his allegation that the public defender refused to appeal, we are reversing this case for. hearing on that specific issue only.
Reversed.
ALLEN, C. J., and SHANNON 'and ANDREWS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nelson v. State, 208 So. 2d 506 (Fla. 4th DCA 1968)…eas corpus is not to be diminished by failure to appeal, but neither is it to be increased.” For holdings to the contrary, Coward v. State, Fla.App.1967, 202 So. 2d 778, Jackson v. State, Fla.App.1964, 166 So. 2d 194, Hinton v. State, Fla.App.1965, 177 So. 2d 522. [*516] As stated in Informal Opinion No. 955 (July 29, 1967) of the Standing Committee on Professional Ethics of the American Bar Association on the question of the obligation to take Criminal Appeals in reference to Anders v. State of California,…
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Murray v. State, 191 So. 2d 292 (Fla. 3d DCA 1966)…termined that appellant had been prevented from appealing his conviction because of insolvency and the refusal of his attorney to prosecute an appeal in his behalf. See Jackson v. State, Fla.App.1964, 166 So. 2d 194; Hinton v. ' State, Fla.App.1965, 177 So. 2d 522. Having made this determination of fact, the trial judge vacated the sentence, resen-tenced the defendant, and ordered that the time for a motion for new trial be extended to permit a delayed motion and an appeal in the event the motion should be de…
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Coward v. State, 202 So. 2d 778 (Fla. 2d DCA 1967)…him to do so. All grounds of the appellant’s motion are denied except the ground that the public defender refused to prosecute an appeal on petitioner’s behalf. Almost identical situations have occurred in the cases of Hinton v. State, Fla.App.1965, 177 So. 2d 522, and Jackson v. State, Fla.App. 1964, 166 So. 2d 194, and the court reversed the cases for hearing on this specific issue only. Therefore, inasmuch as the trial judge’s ruling on all the contentions raised by the appellant are affirmed, with the ex…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jackson v. State, 166 So. 2d 194 (Fla. 3d DCA 1964)