Ford v. Wainwright

425 So. 2d 1189, 1983 Fla. App. LEXIS 18518

• Court: District Court of Appeal of Florida
• Decided: January 27, 1983
• Docket: No. AH-382
• Status: Published

Opinion

PER CURIAM.

Pursuant to the opinion of this court rendered June 4,1982, 415 So.2d 76, an eviden-tiary hearing was conducted before the Honorable John J. Crews, as court-appointed commissioner, for the purpose of making findings of facts and conclusions of law, together with recommendations on the question of whether or not attorney Futch’s failure to file an appeal of petitioner’s criminal conviction constituted ineffective assistance of counsel depriving petitioner of his fundamental right to appeal.

Judge Crews found that attorney Futch was retained at a reasonable fee of $150 to represent petitioner at sentencing; that at no time did counsel agree, nor was he ever employed to file notice of or to perfect an appeal; and that, while counsel did consult with both trial lawyers, he concluded that an appeal could not be successfully prosecuted and advised petitioner to apply to the presiding judge for appointment of a public defender if he decided to pursue his right to appeal. Based on the foregoing findings, Judge Crews concluded that attorney Futch’s failure to file an appeal of petitioner’s criminal conviction did not constitute ineffective assistance of counsel depriving petitioner of his fundamental right to appeal.

Petitioner has filed an exception to the report submitted by Judge Crews. We have considered same together with attorney Futch’s deposition of October 28, 1982 and conclude that there exists no inconsistency with the aforementioned findings and that attorney Futch timely rendered those services for which he was employed.

Accordingly, the petition for writ of ha-beas corpus for a belated appeal is denied.

ROBERT P. SMITH, Jr., C.J., and McCORD and BOOTH, JJ., concur.