JUAN FLORES, PETITIONER,
v.
LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF ADULT CORRECTIONS, STATE OF FLORIDA, RESPONDENT
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The court held that a prisoner's claim that appointed counsel failed to appeal as promised should be heard under Rule 1.850, and the current petition for habeas corpus is adequate to grant a rule nisi.
[1] A defendant has a clear right to appellate review through habeas corpus when denied a normal appeal through state action, including denial of appeal from post-conviction…
[2] A claim that a guilty plea was not made understandingly and voluntarily should be heard under Rule 1.850 and is not barred by prior presentation if it has not been consid…
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Join FLexlaw to unlock all legal intelligenceFlores sought appellate review of the denial of his motion asserting appointed counsel promised to appeal his conviction but failed to do so. Flores a…
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Flores seeks appellate review of denial of his third motion pursuant to Fla. Cr.PR 1.850, 33 F.S.A., asserting that the appointed counsel assigned him said that he would appeal but didn’t. His right to appellate review through habeas corpus where denied a normal appeal through state action is clear. Baggett v. Wainwright, Fla.1969, 229 So.2d 239. This applies as well to denial of appeal from post-conviction proceedings. Cappetta v. Wainwright, Fla.1967, 203 So.2d 609.
Flores alleges a language problem which caused him to think that he was pleading guilty to a violation of Fla.Stat. § 810.05, F.S.A., breaking and entering with intent to commit a misdemeanor, which carries a maximum penalty of five years, whereas he is presently serving a fifteen year sentence for breaking and entering with intent to commit a felony.
It is clear that Flores’ claim that his plea was not made understandingly and voluntarily ought to be heard under Rule 1.850 and that it is not barred by prior presentation to the court so long as it has not been considered and ruled upon. State v. Reynolds, Fla.1970, 238 So.2d 600. See also Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Johnson v. Wainwright, Fla.1970, 238 So.2d 590; Rudolph v. State, Fla.App.1970, 230 So.2d 14.
Flores’ petition adequately asserts that his state-furnished counsel said he would appeal but didn’t. The record of the post-conviction proceeding which he seeks to review is not before us, so we cannot evaluate it, but we do suggest that in the light of our Supreme Court’s recent decision in Reynolds, Flores might want to abandon this route to review, consult with the Public Defender for the Tenth Circuit and file a new petition in the trial court under Rule 1.850. This procedure will save everybody concerned a lot of time. Accordingly, we recognize the adequacy of the petition and grant the rule nisi without prejudice to Flores’ abandonment of habeas corpus and *817proceeding in the trial court after consultation with counsel.
LILES, Acting C. J., and McNULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)…successive motions on the same grounds is applied only when the grounds raised were previously adjudicated on their merits, and not where the previous motion was summarily denied or dismissed for legal insufficiency. See, e.g., Flores v. Wainwright, 240 So. 2d 816 (Fla. 2d DCA 1970); Reynolds v. State, 224 So. 2d 769 (Fla. 2d DCA 1969), cert. discharged, 238 So. 2d 598 (Fla.1970); Taylor v. State, 181 So. 2d 589 (Fla. 4th DCA 1965). On the other hand, a second or successive motion by the same prisoner attack…
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Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987)…ncur. . This relief would be analogous to the belated appeals permitted under the rationale of Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969). Belated appeals may be granted from orders on motions for post-conviction relief, Flores v. Wainwright, 240 So. 2d 816 (Fla. 2d DCA 1970), and the actions of privately-retained counsel may justify the granting of a belated appeal, State v. Meyer, 430 So. 2d 440 (Fla.1983). . Because of the short time frame left to petitioner to file her 3.850 motion, we previously…
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Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)…nce same as ground in prior motion that guilty plea entered because of promise of leniency). See generally Sanders v. United States, 371 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Lawson v. State, 231 So. 2d 205 (Fla. 1970); Flores v. Wainwright, 240 So. 2d 816 (Fla. 2d DCA 1970); Richardson v. State, 202 So. 2d 137 (Fla. 3d DCA 1967); Weeks v. State, 201 So. 2d 764 (Fla. 3d DCA 1967); Hall v. State, 183 So. 2d 277 (Fla. 3d DCA 1966); Piehl v. State, 173 So. 2d 723 (Fla. 1st DCA 1965), quashed on other gro…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969)
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Cappetta v. Louie L. Wainwright, 203 So. 2d 609 (Fla. 1967)
- Johnson v. Louie L. Wainwright, 238 So. 2d 590 (Fla. 1970)
- Rudolph v. State, 230 So. 2d 14 (Fla. 2d DCA 1970)
- Rogers v. State, 230 So. 2d 14 (Fla. 1st DCA 1969)
- State v. Madison Lee Reynolds, 238 So. 2d 600 (Fla. 1970)