ERNEST G. THOMPSON, PETITIONER,
v.
JAMES H. DILLEY, CLERK, CIRCUIT COURT, GLADES COUNTY COURTHOUSE, MOORE HAVEN, FLORIDA, RESPONDENT
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A Florida Supreme Court decision holding that when a trial court's appointed public defender fails to comply with a criminal defendant's explicit request to appeal a conviction, the state has violated the defendant's constitutional right to appeal, requiring the case be transferred for appellate review.
The court held that when court-appointed counsel fails to prosecute a defendant's requested appeal, it constitutes state action that frustrates the defendant's constitutional right to appeal, and therefore an appeal must be afforded. The case was transferred to the Second District Court of Appeal with directions to appoint appeal counsel and provide the trial transcript.
[1] A petition improperly labeled as a writ of certiorari may be treated as a petition for habeas corpus if it has merit and the court has jurisdiction on any proper basis.
[2] State action that frustrates a defendant's constitutional right to appeal constitutes a denial of that right.
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“under the new provision in Fla. Const, art. V, § 2(a) (1973), that: 'no cause shall be dismissed because an improper remedy has been sought', we must consider the petition — no matter its label or the remedy sought — if it has merit and if we have jurisdiction upon any proper basis”
Establishes the court's discretion to treat the mislabeled petition as a habeas corpus petition based on its merits
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThompson was convicted by jury in Glades County Circuit Court and initially represented by private counsel. After conviction and sentencing to life im…
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ON MOTION TO DISMISS
This cause arrives here on proceedings in propria persona designated “petition for writ of certiorari”, seeking review of actions of “the Clerk of the Glades County Circuit Court,” made the respondent herein, involving matters pertaining to efforts of petitioner for an appeal from a criminal conviction entered against him. By motion respondent seeks to dismiss the certiorari petition for lack of jurisdiction.
Of course the clerk’s administrative actions as reflected principally in letters contained in the record before us constitute no basis for review on certiorari; however, under the new provision in Fla. Const, art. V, § 2(a) (1973),'F.S.A., that: “no cause shall be dismissed because an improper remedy has been sought”, we must consider the petition — no matter its label or the remedy sought — if it has merit and if we have jurisdiction upon any proper basis. This petition has merit by way of habeas corpus. We accordingly treated the petition as one for habeas corpus and issued the Great Writ.
Upon inquiry we learn that no appeal was taken from petitioner’s criminal conviction, despite petitioner’s expressed desire to take an appeal at a time when he was represented by the public defender. *235State Action has therefore frustrated petitioner’s constitutional right to appeal.1
Respondent has filed a response asking us to discharge the writ of habeas corpus. Such response is insufficient and therefore is without merit.
Petitioner was represented by private counsel in his jury trial in the Glades County Circuit Court. Following a jury verdict finding him guilty, his privately retained counsel withdrew and upon a showing of insolvency the court then appointed the public defender as counsel of record. Thereafter, the court adjudged petitioner guilty and sentenced him to life imprisonment, whereupon the public defender on behalf of petitioner moved for a new trial, which was denied, but then failed to comply with petitioner’s expressed desire for an appeal.2
In view of the record and these circumstances we must conclude that court-appointed counsel failed to prosecute a requested appeal from petitioner’s conviction. This of course constituted state action which frustrated petitioner’s constitutional right of appeal. We have held in Baggett v. Wainwright, 229 So.2d 239 (Fla.1970), and numerous subsequent decisions that under these circumstances an appeal must be afforded.
This cause is accordingly hereby transferred to the Second District Court of Appeal with directions that appeal counsel be appointed and transcript of record be duly furnished such counsel for purposes of such appeal3 which shall forthwith proceed in accordance with applicable appellate procedures under the Rules.
It is so ordered.
ROBERTS, Acting C. J., and ERVIN, ADKINS and McCAIN, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thompson v. State, 300 So. 2d 301 (Fla. 2d DCA 1974)…relief. The judgment is affirmed subject to the trial court’s consideration of the issue raised under CrPR 3.850, for which purpose the cause is Remanded with directions. MANN, C. J., and McNULTY, J., concur. . See Thompson v. Dilley, Fla.1973, 275 So. 2d 234.…
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Tobler v. State, 350 So. 2d 555 (Fla. 1st DCA 1977)…ly as a matter of the defendant’s reasonable expectation of the Public Defender as a State officer and Tobler’s former counsel. See Leggett v. Wainwright, 297 So. 2d 605 (Fla. 1st DCA 1974), app. dism., 308 So. 2d 115 (Fla.1975); Thompson v. Dilley, 275 So. 2d 234 (Fla.1973). To remedy the loss of a timely appeal from the judgments and sentences by which Tobler is now confined, we will consider the present appeal as sufficient to preserve for review the judgments and sentences imposed by the circuit court on…
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Williams v. State, 310 So. 2d 53 (Fla. 2d DCA 1975)…attorney and stating that he was indigent. Despite this, counsel was not appointed nor an appeal taken until after the time for appeal had expired. We therefore treat the appeal papers as a petition for habeas corpus, Thompson v. Dilley, Fla.1973, 275 So. 2d 234, and grant belated appellate review under authority of Hollingshead v. Wainwright, Fla.1967, 194 So. 2d 577. No formal issuance of a writ is necessary. Considering now the merits of the case, appellant’s only contention is that the lower court erre…
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
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- State of Fla. ex rel. Richard W. Ervin v. Smith, 160 So. 2d 518 (Fla. 1964)
- Powe v. State, 216 So. 2d 446 (Fla. 1968)