Avera v. State, 81-1428
| Decision Date | 04 August 1982 |
| Docket Number | No. 81-1428,81-1428 |
| Citation | 417 So.2d 804 |
| Parties | Robert Thomas AVERA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
ON PETITION FOR WRIT OF HABEAS CORPUS
This is another petition for writ of habeas corpus for delayed appellate review. An assistant public defender has again failed to follow the Rules of Criminal Procedure by failing to file a timely motion for new trial and failing to file a timely notice of appeal.
The assistant attorney general assigned to this case strongly objects with good reason to our, in effect, waiving the jurisdictional requirements regarding cases such as these and maintains that the thirty-day requirement for the filing of a notice of appeal is merely a "suggestion that defendant's counsel file his notice within thirty days." In all cases except those where counsel is appointed to represent criminal defendants, the thirty day time limit is jurisdictional and cannot be extended by the court. This exception is now being extended to include criminal defendants represented by privately retained counsel who fail to file a timely notice of appeal on the grounds that such failure indicates ineffective assistance of counsel. The reasoning is that only the lawyer is to blame and the defendant should not suffer just because he retained an incompetent lawyer. See Ford v. Wainwright, 415 So.2d 76 (Fla. 1st DCA 1982).
Baggett v. Wainwright, 229 So.2d 239 (Fla.1969), Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967) and a multitude of other cases establish and maintain the rule that if a criminal defendant is denied the right to appeal because of ineffective assistance of counsel then the appellate court should grant a petition for writ of habeas corpus for belated appellate review. We shall follow the rule and thus grant the petition for writ of habeas corpus in this case and permit petitioner to carry forth his appeal.
On March 3, 1982, this court sent a letter to each public defender in this district telling them to advise their attorneys "that from this day forward, any such petition will be forwarded to the proper grievance committee for appropriate action." As judges and members of The Florida Bar it is our obligation to report incompetent counsel to The Florida Bar for its determination as to whether grievance procedures are warranted. Because the breach of duty committed by the attorney in this case was before the March 3, 1982 warning letter and because the trial judge expressly, on...
To continue reading
Request your trial
-
State v. Meyer
...5th DCA 1982); Levesque v. State, 416 So.2d 509 (Fla. 5th DCA 1982); Smith v. State, 416 So.2d 510 (Fla. 5th DCA 1982); Avera v. State, 417 So.2d 804 (Fla. 5th DCA 1982); Epps v. Wainwright, 420 So.2d 659 (Fla. 4th DCA 1982).2 The second certified question is not apposite to the facts befor......
-
Bridges v. Dugger, 87-2245
...Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). One flaw with this reasoning was pointed out by the appellee in Avera v. State, 417 So.2d 804 (Fla. 5th DCA 1982), who argued that the extension of Baggett to defense counsel effectively abolished the jurisdictional time limit for filing a no......