ALONZO HARRELL, PETITIONER,
v.
LOUIE L. WAINWRIGHT, RESPONDENT
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Petitioner Harrell sought delayed appellate review of his conviction after his direct appeal was dismissed as untimely. The court denied his petition because he failed to allege that state agents or his public defender denied him his right to appeal, only that the public defender failed to take an appeal.
The petition for delayed appellate review is denied because Harrell has not made any showing of deprivation of his right to appeal through the fault of state agents, including the public defender. While Harrell has an absolute right to appeal, the right is waived if notice of appeal is not timely filed unless the failure to file resulted from state action.
[1] A petitioner seeking delayed appellate review must allege state action that deprived them of their right to appeal.
[2] The right to appeal is not automatic and can be waived if a notice of appeal is not timely filed, unless the failure to file resulted from state action.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“he does not allege that he was not advised of his right to appeal and to counsel on appeal, if indigent, nor does he allege that he requested the lawyer appointed to represent him to file an appeal. In short, he has not alleged any action on the part of the state's agents which has denied him the right to appellate review.”
Establishes the standard for delayed appellate review—petitioner must show state action or agent misconduct, not merely that an appeal was not filed.
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Join FLexlaw to unlock all legal intelligenceHarrell's direct appeal was dismissed as untimely filed. He filed a petition for delayed appellate review under Baggett v. Wainwright, which was denie…
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Petitioner asks delayed appellate review pursuant to Baggett v. Wainwright, Fla. 1969, 229 So.2d 239. His direct appeal was dismissed as untimely filed. His first petition for delayed appellate review was denied without opinion for the same reasons we must deny this second one. Harrell’s allegation is that the public defender failed to take an appeal. He does not allege that he was not advised of his right to appeal and to counsel on appeal, if indigent, nor does he allege that he requested the lawyer appointed to represent 'him to file an appeal. In short, he has not alleged any action on the part of the state’s agents which has denied him the right to appellate review. The taking of an appeal is not automatic, and it is not, in fact, the normal thing to do unless there is some reason to believe that the proceedings in the trial court should be reviewed by an appellate court. This second Baggett-type petition was filed initially in the Supreme Court and properly transferred here. The first was not denied “arbitrarily and capricious” (sic), as Harrell represented to the Supreme Court. It was denied because Harrell has not made any showing of deprivation of his right to appeal through the fault of the state’s agents, including the public defender. We would suggest that Harrell consult the Legal Aid and Public Defender Clinic at the Spessard L. Holland Law Center, University of Florida, Gainesville, to determine whether in fact he has a right to delayed appeal and, if so, to seek help in the framing of a proper petition. Harrell assets that he has an absolute right *185to appeal, which is true, but appeal is not automatic, and, if notice of appeal is not timely filed, the right is waived unless the failure to file resulted from state action. Accordingly, the petition is denied without prejudice.
LILES, Acting C. J., and MANN and McNULTY, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Erick Mott v. State, 574 So. 2d 310 (Fla. 3d DCA 1991)…fact, was not filed until 43 days after the appellant admits receipt of the order appealed. Therefore, we dismiss it pursuant to Wells v. State, 38 So. 2d 464 (Fla.1949); Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983); Harrell v. Wainwright, 268 So. 2d 184 (Fla. 2d DCA 1972); see also Dibble v. Dibble, 377 So. 2d 1001 (Fla. 3d DCA 1979); Finley v. State, 168 So. 2d 201 (Fla. 2d DCA 1964). However, we have also examined it as to the merits and find it to be nonmeritorious. See Strickland v. Washington,…
Authorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)