Bridges v. Dugger, No. 87-2245

CourtFlorida District Court of Appeals
Writing for the CourtPER CURIAM; DANAHY
Citation518 So.2d 298,12 Fla. L. Weekly 2548
Docket NumberNo. 87-2245
Decision Date06 November 1987
Parties12 Fla. L. Weekly 2548 Joseph Andrew BRIDGES, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.

Page 298

518 So.2d 298
12 Fla. L. Weekly 2548
Joseph Andrew BRIDGES, Petitioner,
v.
Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.
No. 87-2245.
District Court of Appeal of Florida,
Second District.
Nov. 6, 1987.

Joseph Andrew Bridges, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent.

PER CURIAM.

Joseph Bridges petitions this court for a writ of habeas corpus. We deny the petition.

In 1980 Bridges was charged with two counts of robbery with a firearm, two counts of kidnapping, one count of robbery, and one count of attempted robbery. A plea agreement was negotiated whereby Bridges would be sentenced to "less than the maximum on each charge." On January 7, 1981, Bridges was sentenced to twenty-five years on each count, those sentences to run concurrently. The trial court made a specific finding that Bridges was a habitual felony offender. 1 Bridges claims that this enhancement provision violated the terms of the plea agreement because, due to the operation of section 775.084, certain of the sentences exceeded the statutory maximum. He also claims that the trial court failed to conduct an adequate hearing on the necessity for habitual offender treatment as required by law. Finally, Bridges states that he made his dissatisfaction known to counsel at the time of sentencing and asked counsel to file an appeal, but that counsel failed to do so. Only the last of these complaints is appropriately raised in a petition for habeas corpus. The failure to appeal a conviction and sentence, even though a timely request has been made, generally constitutes ineffective assistance of counsel remediable by habeas corpus brought in the court having appellate jurisdiction over the case. State v. Meyer, 430 So.2d 440 (Fla.1983).

Prior to the Meyer decision, whenever it could be demonstrated that a public defender neglected to appeal a conviction despite a request from his client, a belated appeal was authorized on the theory counsel's inaction constituted "state action." 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 notice of appeal in criminal cases and replaced it with a "suggestion" that counsel file his notice within thirty days. Secondly, in light of Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), it became questionable whether a public defender, as an advocate for the accused operating as an adversary of the state, should be considered to function under color of state law. As a result the supreme court, in Meyer, found no logical basis for imputing the actions of court-appointed counsel to the state. Instead, the court held that omissions such as the failure to file a notice of appeal were better remedied by collateral attack based upon ineffective assistance, discipline by the Florida Bar, or even suits for money damages. 2

A criminal defendant claiming to have received ineffective assistance of counsel must satisfy a two-pronged test. First, the specific omission of counsel must be identified. In the situation presented by the present case that is rather easily done: the omission is the failure to invoke the jurisdiction of the appellate court by filing the necessary notice. Second, the movant must show that counsel's deficient performance prejudiced the outcome of the case. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

Page 300

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This standard applies to complaints against appellate counsel as well as against trial counsel. See, e.g., Johnson v. Wainwright, 463 So.2d 207 (Fla.1985). It can be argued that this second prong has never been fully explored or elucidated in the context of ineffective appellate counsel claims based on the failure to appeal at all.

We have not heretofore required...

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11 practice notes
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • 20 Enero 1998
    ...upon a plea or a finding of guilt following trial. The first apparent departure from established precedent occurred in Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987), in which the Second District Court of Appeal denied a petition for writ of habeas corpus on the ground that the petitio......
  • State v. Rogers
    • United States
    • Supreme Court of Tennessee
    • 24 Mayo 1999
    ...Minster, 486 A.2d at 1200 n. 4. The rule has been judicially abrogated in ten jurisdictions. See Jackson, 528 A.2d at 1218(D.C); Jones, 518 So.2d at 298(Fla); Lewis, 409 N.E.2d at 773 (Mass.); Stevenson, 331 N.W.2d at 143 (Mich.); State v. Young, 77 N.J. 245, 390 A.2d 556 (1978); Gabehart, ......
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • 27 Mayo 1999
    ...in Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998) (en banc), which certified conflict with the decisions in Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987), Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997), Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996), and Zduniak v. Stat......
  • Hicks v. State, 90-01284
    • United States
    • Court of Appeal of Florida (US)
    • 20 Julio 1990
    ...dismissible on the alternative ground that it is taken from a guilty plea entered pursuant to a signed plea agreement. Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987); Counts v. State, 376 So.2d 59 (Fla. 2d DCA Appeal dismissed. DANAHY, A.C.J., and THREADGILL and PATTERSON, JJ., concur. ...
  • Request a trial to view additional results
11 cases
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • 20 Enero 1998
    ...upon a plea or a finding of guilt following trial. The first apparent departure from established precedent occurred in Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987), in which the Second District Court of Appeal denied a petition for writ of habeas corpus on the ground that the petitio......
  • State v. Rogers
    • United States
    • Supreme Court of Tennessee
    • 24 Mayo 1999
    ...Minster, 486 A.2d at 1200 n. 4. The rule has been judicially abrogated in ten jurisdictions. See Jackson, 528 A.2d at 1218(D.C); Jones, 518 So.2d at 298(Fla); Lewis, 409 N.E.2d at 773 (Mass.); Stevenson, 331 N.W.2d at 143 (Mich.); State v. Young, 77 N.J. 245, 390 A.2d 556 (1978); Gabehart, ......
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • 27 Mayo 1999
    ...in Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998) (en banc), which certified conflict with the decisions in Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987), Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997), Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996), and Zduniak v. Stat......
  • Hicks v. State, 90-01284
    • United States
    • Court of Appeal of Florida (US)
    • 20 Julio 1990
    ...dismissible on the alternative ground that it is taken from a guilty plea entered pursuant to a signed plea agreement. Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987); Counts v. State, 376 So.2d 59 (Fla. 2d DCA Appeal dismissed. DANAHY, A.C.J., and THREADGILL and PATTERSON, JJ., concur. ...
  • Request a trial to view additional results

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