BRUCE STANLEY TOBLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tobler appeals a circuit court order denying his motion to vacate judgments and consecutive sentences on grounds of ineffective assistance of counsel and denial of due process. The appellate court reverses its prior denial of a belated appeal, holding that Tobler was entitled to a tardy appeal under Hollingshead principles and appoints appellate counsel to review the underlying convictions and sentences.
Tobler was entitled to a tardy appeal under Hollingshead principles. The appointment of trial counsel extends beyond judgment and sentence to qualify the defendant for appointed appellate counsel upon timely request. The court will treat the present appeal as sufficient to preserve review of the July 7, 1976 judgments and sentences, and will appoint the Public Defender for the Second Judicial Circuit to represent Tobler on appeal.
[1] A defendant is entitled to a tardy appeal when appointed counsel fails to file a notice of appeal, even if the defendant does not assert reversible error in the judgment…
[2] The appointment of a Public Defender at trial should extend beyond judgment and sentence to qualify the defendant for appointed appellate counsel upon a timely request.
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Join FLexlaw to unlock all legal intelligence“It was not a prerequisite for that relief that Tobler assert some arguably reversible error. Baggett rejected that proposition, previously approved in Robertson v. State, 219 So. 2d 456 (Fla. 1st DCA 1969).”
Establishes that a defendant seeking a tardy appeal need not show error in the underlying judgment to qualify for relief under Hollingshead principles.
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Join FLexlaw to unlock all legal intelligenceTobler was convicted of five offenses and sentenced to consecutive sentences. Immediately after conviction, Tobler expressed to his appointed trial co…
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SMITH, Judge.
Tobler prosecutes this pro se appeal from a circuit court order denying his motion to vacate his judgments and consecutive sentences for five offenses. Fla.R.Cr.P. 3.850. Tobler’s motion urged he was denied the effective assistance of counsel to prosecute an appeal following his conviction, that he was improperly subjected to five consecutive sentences, and that the trial court denied him due process of law by denying his motion to suppress evidence of statements made by Tobler while in custody.
Approximately a year ago, the Public Defender for the Fourth Judicial Circuit presented to us, in Tobler’s behalf, a petition for leave to file a notice of appeal out of time in keeping with the principles with Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969) and Hollingshead v. Wainwright, 194 So. 2d 577 (Fla.1967), cert. den., 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968).
The petition represented that, immediately following Tobler’s conviction and sentence, To-bler advised the assistant public defender who represented him under appointment at trial that he wished to appeal; that through inadvertence the assistant public defender failed to qualify Tobler as still indigent and entitled to appointed counsel on appeal, and failed to file a notice of appeal; and, consequently, that Tobler was entitled to a tardy appeal. Without opinion we denied To-bler’s petition for a “Hollingshead appeal,” conceiving that any post-sentence neglect by Tobler’s former appointed counsel could not be attributed to the State and that no relief by way of tardy appeal should be granted one whose petition made no assertion of error in the judgment and sentence.
On reconsideration of the case in its present posture, we are persuaded we erred in denying Tobler a “Hollingshead appeal.” It was not a prerequisite for that relief that Tobler assert some arguably reversible error. Baggett rejected that proposition, previously approved in Robertson v. State, 219 So. 2d 456 (Fla. 1st DCA 1969).
It also appears that the appointment at trial of the Public Defender for the Fourth Judicial Circuit as Tobler’s counsel should be considered as extending beyond judgment and sentence for the purpose of qualifying the defendant, on his timely request, for appointed appellate counsel. That is so whether counsel’s duty is considered as within the terms of his original appointment or simply 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 July 7, 1976. Without a further showing of indigency, the Public Defender for the Second Judicial Circuit is appointed to represent Tobler on this appeal. Pursuant to his directions the clerk of the circuit court will prepare and transmit with dispatch the record on appeal. Assignments of error are dispensed with. Within 30 days after transmittal of the record on appeal, or within such other time as the court may allow, appellant’s brief will be filed. Upon filing of the State’s brief within 30 days thereafter, consideration of this cause will be expedited.
BOYER, Acting C. J., and MILLS, J., concur.
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Tobler v. State, 371 So. 2d 1043 (Fla. 1st DCA 1979)…McCORD, Chief Judge. This appeal is from conviction of appellant of three counts of burglary and two counts of grand larceny. [See Tobler v. State, 350 So. 2d 555 (Fla. 1 DCA 1977).] We affirm the convictions but remand for reconsideration of the trial court’s nonal-lowance of jail time credit in this case. At trial, the State put into evidence a written confession given by appellant to a detective. Other ev…
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Chaudoin v. State, 383 So. 2d 645 (Fla. 5th DCA 1980)…nder Florida Rule of Appellate Procedure 9.040(c), this court will treat this case as though the proper remedy had been sought. See Article V, Section 2(a), Florida Constitution (1973); Thompson v. Dilley, 275 So. 2d 234 (Fla.1973); Tobler v. State, 350 So. 2d 555 (Fla. 1st DCA 1977); Rushing v. State, 233 So. 2d 137 (Fla. 3d DCA 1970). Accordingly, in order to determine whether petitioner is entitled to full appellate review, the Honorable John W. Booth Circuit Judge of the Fifth Judicial Circuit of Florida,…
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E. L. K. v. State, 407 So. 2d 333 (Fla. 3d DCA 1981)…PER CURIAM. Affirmed. Sealey v. State, 379 So. 2d 430 (Fla. 2d DCA 1980); Tobler v. State, 350 So. 2d 555 (Fla. 1st DCA 1977), cert. denied, 371 So. 2d 1043 (Fla.1979); DeGeorge v. State, 358 So. 2d 217 (Fla. 4th DCA 1978); Greer v. State, 354 So. 2d 952 (Fla. 3d DCA 1978).…
Previewing 3 of 4 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)
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)
- Thompson v. Dilley, 275 So. 2d 234 (Fla. 1973)
- Mayes v. Vincent, 391 U.S. 968 (U.S. 1968)
- Evans v. United States, 391 U.S. 968 (U.S. 1968)
- Leggett v. Louie L. Wainwright, 297 So. 2d 605 (Fla. 1st DCA 1974)
- Robertson v. State, 219 So. 2d 456 (Fla. 1st DCA 1969)
- Collier Lease Plan, Inc. v. Anne B. Mills, 219 So. 2d 456 (Fla. 1st DCA 1969)
- State v. Reis, 308 So. 2d 115 (Fla. 1975)
- Reizen v. Fla. Nat'l Bank AT Gainesville, 308 So. 2d 115 (Fla. 1975)