Washington v. State

District Court of Appeal of Florida

Washington v. State

576 So. 2d 973, 1991 Fla. App. LEXIS 3016, 1991 WL 45754

CourtDistrict Court of Appeal of Florida

DecidedApril 5, 1991

DocketNo. 90-03487

StatusPublished

Cited by1 cases

This text of 576 So. 2d 973 (Washington 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.

Bluebook

Washington v. State, 576 So. 2d 973, 1991 Fla. App. LEXIS 3016, 1991 WL 45754 (Fla. Ct. App. 1991).

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Opinion

PER CURIAM.

This is an appeal from the denial of a Florida Rule of Appellate Procedure 3.850 motion to vacate appellant’s prior conviction of first-degree murder. Several of the grounds in the motion concerning competency of the trial counsel were not very specific and, to the limited extent they were specific, were refuted by the record. Thus, the trial judge was correct in denying those portions of the motion.

The rule 3.850 motion also alleged that trial counsel never told appellant that he had to request an appeal if he received a sentence of less than death and, thus, frustrated his right to a direct appeal. There is some indication in the record that appellant knew of his right to appeal and told his attorney he did not want to appeal. However, the trial judge correctly did not rule as to the merits of this allegation. At the time, allegations of incompetence of counsel relating to failure to timely file an appeal could only be raised by a habeas corpus petition filed in the appellate court to which the appeal would have been prosecuted. State v. Meyer, 430 So.2d 440 (Fla.1983).

However, the Florida Supreme Court has recently held that requests for belated appeals should be handled in the trial court by a motion under rule 3.850 rather than in the appellate court by a petition for writ of habeas corpus. State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla.1990).

Therefore, we reverse and remand for determination of appellant’s belated appeal point. Otherwise, affirmed.

SCHEB, A.C.J., and CAMPBELL and THREADGILL, JJ., concur.

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PER CURIAM.

This is an appeal from the denial of a Florida Rule of Appellate Procedure 3.850 motion to vacate appellant’s prior conviction of first-degree murder. Several of the grounds in the motion concerning competency of the trial counsel were not very specific and, to the limited extent they were specific, were refuted by the record. Thus, the trial judge was correct in denying those portions of the motion.

The rule 3.850 motion also alleged that trial counsel never told appellant that he had to request an appeal if he received a sentence of less than death and, thus, frustrated his right to a direct appeal. There is some indication in the record that appellant knew of his right to appeal and told his attorney he did not want to appeal. However, the trial judge correctly did not rule as to the merits of this allegation. At the time, allegations of incompetence of counsel relating to failure to timely file an appeal could only be raised by a habeas corpus petition filed in the appellate court to which the appeal would have been prosecuted. State v. Meyer, 430 So.2d 440 (Fla.1983).

However, the Florida Supreme Court has recently held that requests for belated appeals should be handled in the trial court by a motion under rule 3.850 rather than in the appellate court by a petition for writ of habeas corpus. State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla.1990).

Therefore, we reverse and remand for determination of appellant’s belated appeal point. Otherwise, affirmed.

SCHEB, A.C.J., and CAMPBELL and THREADGILL, JJ., concur.

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576 So. 2d 973, 1991 Fla. App. LEXIS 3016, 1991 WL 45754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-state-fladistctapp-1991.

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