ARTHUR L. MILLIGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The failure of privately-retained counsel to file a notice of appeal, without a showing of plain reversible error at trial, does not entitle a movant to post-conviction relief.
Appellant was convicted of breaking and entering and grand larceny and sentenced to prison. His privately-retained counsel failed to file a notice of …
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Appellant has filed this appeal from an order which denied him relief under Criminal Procedure Rule One, F.S.A. ch. 924 Appendix.
Appellant was charged with breaking and entering and grand larceny. After the jury returned a verdict of guilty, the appellant was sentenced to serve seven years in the state prison.
The sole question presented in this appeal is whether a movant for post-conviction relief may properly complain that his privately-retained counsel failed to appeal his judgment and sentence, where said counsel had been requested and paid to do so. (The appellant has a different attorney representing him in this appeal under Criminal Procedure Rule One.)
There are no Florida cases directly passing on this point, but there are several federal cases which have arisen under the federal equivalent of Florida’s Criminal Procedure Rule One. (See 28 U.S.C.A. § 2255.) The general rule in the federal courts is that the failure to appeal may not be excused upon a mere showing of neglect of counsel. There must be a further showing that there was plain reversible error in the trial. Ramsey v. United States, D.C.Tenn.1963, 223 F.Supp. 605; Mitchell v. United States, C.A.1958, 103 U.S.App.D.C. 97, 254 F.2d 954, Cert. Denied (1962), 371 U.S. 838, 83 S.Ct. 64, 9 L.Ed.2d 73; United States v. Peabody, D.C.Wash.1958, 173 F.Supp. 413, Cert. Denied (1959), 361 U.S. 841, 80 S.Ct. 91, 4 L.Ed.2d 79; and Dennis v. United States, C.A.S.C.1949, 177 F.2d 195.
Appellant’s brief raises only one issue in' this appeal — the neglect of appellant’s original attorney to file a notice of appeal. There are no allegations of any errors-which occurred at appellant’s trial. We hold that the allegation of neglect of counsel to file a notice of appeal without a; showing of any reversible error occurring at the trial will not entitle an appellant to post-conviction relief pursuant to Criminal Procedure Rule One.
Affirmed.
LILES and HOBSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Hudson v. State, 596 So. 2d 1213 (Fla. 1st DCA 1992)…tive assistance of counsel in failing to file an appeal despite Hudson’s request that he do so. The trial court summarily denied the motion, in that Hudson did not allege or show that reversible error occurred at his trial, citing Milligan v. State, 194 So. 2d 663 (Fla. 2d DCA 1967) (allegation of neglect of counsel to file a notice of appeal without a showing of any reversible error occurring at the trial will not entitle an appellant to post-conviction relief). Hudson argues that the order must be reversed…
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Barnett v. State, 222 So. 2d 30 (Fla. 2d DCA 1969)…es, pro and con, upon this issue. This is so because apparently all four District Courts are now uniform in the holding that such probable trial error must be alleged in the motion. This 2nd District Court so held in Milligan v. State, Fla.App.1967, 194 So. 2d 663, and Riley v. State, Fla.App.1968, 214 So. 2d 766. The 3rd District Court so held in Murray v. State, Fla.App.1966, 191 So. 2d 292, following Jackson v. State, Fla.App.1964, 166 So. 2d 194. The 4th District Court held accordingly in Nelson v. State,…
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Millard Keith v. State, 222 So. 2d 186 (Fla. 1969)…or potentially beneficial, this belated claim to a right to appeal with the assistance of counsel is found to be without merit. Victor v. Lane, 394 F. 2d 268 (7th Cir.1968); Pierson v. State, 214 So. 2d 17 (1st Dist.Fla.App.1968); Milligan v. State, 194 So. 2d 663 (2d Dist.Fla.App.1967); Murray v. State, 191 So. 2d 292 (3d Dist.Fla.App.1966); Nelson v. State, 208 So. 2d 506 (4th Dist.Fla.App.1968). We are not here confronted by a prisoner’s effort to effectuate an allegedly meritorious appeal which he claims…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dennis v. United States, 177 F.2d 195 (4th Cir. 1949)
- Mitchell v. United States, 254 F.2d 954 (D.C. Cir. 1958)
- Liebmann Breweries, Inc. v. Superior Court of Cal. in & for the Cnty. of Los Angeles, 361 U.S. 841 (U.S. 1959)
- Jackson v. Illinois, 371 U.S. 838 (U.S. 1962)
- Sherwood v. United States, 371 U.S. 838 (U.S. 1962)