Strange v. State

District Court of Appeal of Florida

Strange v. State

732 So. 2d 1117, 1999 Fla. App. LEXIS 1599, 1999 WL 76404

CourtDistrict Court of Appeal of Florida

DecidedFebruary 19, 1999

DocketNo. 98-3493

StatusPublished

This text of 732 So. 2d 1117 (Strange v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Strange v. State, 732 So. 2d 1117, 1999 Fla. App. LEXIS 1599, 1999 WL 76404 (Fla. Ct. App. 1999).

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Opinion

PER CURIAM.

Strange petitions this court for a writ of habeas corpus, to obtain a belated appeal grounded on failure of court appointed trial counsel to file an appeal on his behalf. Strange was convicted some six and one-half years before he filed this petition. Thus his petition is barred by laches. McCray v. State, 699 So.2d 1366 (Fla.1997) held that petitions claiming ineffective assistance of appellate counsel are presumed to be the result of unreasonable delay and to prejudice the state when filed more than five years after the date the conviction became final.

Here Strange claims he was “affirmatively misled by his court appointed tri[1118]*1118al counsel that an appeal would be filed.” However, such an allegation of affirmative misrepresentation by trial counsel must be made under oath. Here, Strange does not do so. Accordingly, we deny the petition for habeas corpus, without prejudice to Strange to file a claim of affirmative misrepresentation under oath, as required by McCray.

Petition for Writ of Habeas Corpus DENIED.

W. SHARP, GOSHORN and ANTOON, JJ., concur.

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PER CURIAM.

Strange petitions this court for a writ of habeas corpus, to obtain a belated appeal grounded on failure of court appointed trial counsel to file an appeal on his behalf. Strange was convicted some six and one-half years before he filed this petition. Thus his petition is barred by laches. McCray v. State, 699 So.2d 1366 (Fla.1997) held that petitions claiming ineffective assistance of appellate counsel are presumed to be the result of unreasonable delay and to prejudice the state when filed more than five years after the date the conviction became final.

Here Strange claims he was “affirmatively misled by his court appointed tri[1118]*1118al counsel that an appeal would be filed.” However, such an allegation of affirmative misrepresentation by trial counsel must be made under oath. Here, Strange does not do so. Accordingly, we deny the petition for habeas corpus, without prejudice to Strange to file a claim of affirmative misrepresentation under oath, as required by McCray.

Petition for Writ of Habeas Corpus DENIED.

W. SHARP, GOSHORN and ANTOON, JJ., concur.

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732 So. 2d 1117, 1999 Fla. App. LEXIS 1599, 1999 WL 76404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strange-v-state-fladistctapp-1999.

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