DANIEL SHERMAN SCHAEFFER, PETITIONER,
v.
LOUIE L. WAINWRIGHT, ETC., RESPONDENT
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The Florida Supreme Court held that a criminal defendant represented by private counsel at trial bears responsibility for ensuring timely appeal within statutory time limits, and the state has no obligation to appoint appellate counsel or initiate appeal procedures absent the defendant's explicit notice of indigency and desire to appeal.
The Court held that when a defendant retains private counsel at trial, the state may presume that counsel will protect the defendant's appellate rights. The defendant must give timely notice of indigency and desire to appeal; without such notice, the state is not obligated to appoint appellate counsel or initiate any action toward appointment.
“when a person retains counsel at his original trial the State may presume that the privately chosen counsel will protect his client's rights on appeal and will prosecute an appeal if it is to the accused's best interest”
Establishes the central holding that private counsel's retention creates a presumption of appellate protection
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Join FLexlaw to unlock all legal intelligenceSchaeffer was convicted of robbery on May 15, 1963, and sentenced to 6 months to 15 years in prison. He was represented by private counsel at trial. A…
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Petitioner, Daniel Sherman Schaeffer, was adjudged guilty of the offense of robbery on May 15, 1963, and sentenced to a term of six months to fifteen years imprisonment. He was represented by private counsel at his trial but after conviction no appeal was taken by his privately retained counsel.
After expiration of the ninety-day period provided for under the then existing Rule 6.2, F.A.R., 32 F.S.A., petitioner filed notice of appeal in proper person in the Criminal Court of Record in and for Orange County, Florida, and the public defender was appointed to represent him. The State filed a motion to dismiss and an order was entered dismissing the appeal for the reason that the notice of appeal was not timely filed. Sec. 924.09, Florida Statutes, F.S.A.; Bell v. State, 154 Fla. 505, 18 So.2d 361; and Wells v. State, Fla., 38 So.2d 464.
Petitioner now seeks relief by petition for writ of habeas corpus in this court from his sentence contending that he was denied his right to direct appeal because he was indigent and was further denied court-appointed counsel to prosecute his direct appeal. He does not allege, and he fails to show, that he made known to the court or any other responsible official his state of indigency, his desire for appeal, or the refusal of his privately retained counsel to prosecute his appeal within the ninety-day period.
We feel and so hold that when a person retains counsel at his original trial the State may presume that the privately chosen counsel will protect his client’s rights on appeal and will prosecute an appeal if it is to the accused’s best interest. If for any reason, including indigency, petitioner had given timely notice to the State of his desire to appeal, it would have been necessary for the court to have made inquiry as to indigency and to have advised him of his rights, but without such knowledge it is not necessary that the State initiate action toward the appointment of appellate counsel. Cf. Pate v. Holman, 5 Cir., 341 F.2d 764; Harris v. Beto, 5 Cir., 392 F.2d 191; and Simpson v. State (1966), 43 Ala.App. 348, 190 So.2d 561.
The petitioner is therefore remanded to custody and the writ is hereby discharged.
It is so ordered.
ERVIN, C. J., and DREW, THORNAL and CARLTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)…to utilize his appellate rights, the occurrence of the State’s duty in this respect must be measured against the constitutionally imposed requirements as enumerated above. See Powe v. State (Fla.), 216 So. 2d 446; Schaeffer v. Wainwright (Fla.1969) 218 So. 2d 442. In the present case, we think the allegations set forth in the petition, if proven, are sufficient to have generated or raised a duty upon the State to afford Petitioner the necessary incidents of an appeal, including appointment of counsel. Petit…
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Higginbotham v. State of Fla. & Louie L. Wainwright, 223 So. 2d 769 (Fla. 4th DCA 1969)…the petitioner was not entitled to use habeas corpus as a means of obtaining delayed appellate review upon the authority of King v. Wainwright, 5 Cir. 1966, 368 F. 2d 57; Pate v. Holman, 5 Cir. 1965, 341 F. 2d 764; Schaeffer v. Wainwright, Fla.1969, 218 So. 2d 442; Pierson v. State, Fla.App.1968, 214 So. 2d 17; Kinsey v. State, Fla.App. 1965, 179 So. 2d 108. We therefore denied the petition for writ of habeas corpus without consideration of the merits of the points presented for appellate review. The petitio…
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Lou Ghelfi v. State, 251 So. 2d 720 (Fla. 3d DCA 1971)…the purpose of directly appealing a judgment of conviction, nevertheless there is an affirmative duty upon the defendant to communicate these facts to the Court, if he retained private counsel for the duration of his trial. Schaeffer v. Wainwright, 218 So. 2d 442 (Fla.1969), Harris v. Beto, 392 F. 2d 191 (5th Cir. 1968). Thus, petitioner’s lack of counsel on direct appeal was not due to any state action, but rather due to petitioner’s own failure to inform the Court of his indi-gency.” [Emphasis supplied.]…
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
- Pate v. Holman, 341 F.2d 764 (5th Cir. 1965)
- Bell v. State, 154 Fla. 505 (Fla. 1944)
- Harris v. Beto, 392 F.2d 191 (5th Cir. 1968)
- Wells v. State, 38 So.2d 464 (Fla. 1949)