Brooks v. State

• Decision Date: 07 May 2002
• Docket Number: No. 1D00-2694.,1D00-2694.
• Citation: 816 So.2d 199
• Parties: Alvin BROOKS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

816 So.2d 199

Alvin BROOKS, Petitioner, v. STATE of Florida, Respondent.

No. 1D00-2694.

District Court of Appeal of Florida, First District.

May 7, 2002.

Petitioner pro se.

Robert A. Butterworth, Attorney General; Daniel A. David and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Respondent.

EN BANC

WEBSTER, J.

Petitioner seeks a belated appeal of his judgment and sentence, pursuant to what is now Florida Rule of Appellate Procedure 9.141(c) (and prior to January 1, 2001, was rule 9.140(j)). In his petition, petitioner alleged only that at the time his sentence was imposed, the trial court advised him of his right to appeal; that he told his attorney he wanted to appeal; and that he did not learn that no appeal had been filed until after the time for doing so had passed. The state attached to its response to our order to show cause an affidavit from petitioner's trial attorney, in which the attorney denied that petitioner had requested that he file a notice of appeal. As is our practice in such cases, see, e.g., Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998),

we relinquished jurisdiction to the trial court, directing the chief judge to appoint a special master to receive evidence and then make a finding regarding the factual dispute. Following an evidentiary hearing, the special master found that petitioner had not timely requested that his attorney file a notice of appeal. That finding is supported by competent substantial evidence. As no other issue was raised by the petition, we deny it. See Fla. R.App. P. 9.141(c)(3)(F) (requiring that a petition seeking a belated appeal recite in the statement of facts "the specific acts ... that constitute the alleged ... basis for entitlement to belated appeal").

PETITION FOR BELATED APPEAL DENIED.

ALLEN, C.J., BOOTH, BARFIELD, MINER, WOLF, KAHN, DAVIS, VAN NORTWICK, PADOVANO, LEWIS and POLSTON, JJ., concur; BENTON, J., concurs in part and dissents in part with written opinion; BROWNING, J., concurs in part and dissents in part with written opinion; ERVIN, J., dissents with written opinion.

BENTON, J., concurring in part and dissenting in part.

While Alvin Brooks' petition was technically inadequate to state a claim under Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), I would not deny it without granting him leave to file a petition that does allege a claim under the Flores-Ortega decision within thirty days. Otherwise, what a circuit judge has already treated as a viable claim for belated appeal of a conviction predicated on a jury verdict will presumably be time barred. See Fla. R.App. P. 9.141(c)(4)(A) (providing that a "petition for belated appeal shall not [ordinarily] be filed more than 2 years after the expiration of time for filing the notice of appeal from a final order"). The judgment and sentence of which petitioner seeks review were rendered on October 26, 1999.

In response to the petition for belated appeal Alvin Brooks originally filed, this court entered an order to show cause on July 18, 2000, requiring him to file and serve an amended petition within fifteen days specifying when he had asked trial counsel to take an appeal. By providing that failure to comply timely might result in dismissal, the order to show cause entered on July 18, 2000 implied a necessity to plead a request on petitioner's part, regardless of other circumstances, in order to be entitled to a belated appeal.

Thereafter, petitioner filed an amended petition alleging this theory. By order entered October 18, 2000, citing Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998), this court asked the chief judge of the eighth judicial circuit to appoint a special master to serve as commissioner, conduct a hearing and make findings and conclusions "regarding petitioner's entitlement to a belated appeal."

Appointed special master, the Hon. Martha Ann Lott conducted an evidentiary hearing and filed Findings of Fact and Law on December 12, 2000, reciting the substance of Brooks' testimony that he asked defense counsel to take an appeal, and defense counsel's testimony to the contrary, as follows:

6. Under the defendant's version of the facts, the attorney failed to file a notice of appeal when instructed.

7. Under the attorney's version of the facts, the attorney failed to discuss the right to appeal and the potential merits of any possible appeal with the defendant.

8. This court does not make any finding resolving the conflict in the testimony because under either set of facts, the defendant is entitled to a belated appeal as a matter of law based upon the obligation of counsel to confer with the defendant regarding his right to appeal and to protect the right of the defendant to appeal unless those rights are affirmatively waived.

On February 21, 2001, after receiving the special master's report and the state's response, this court relinquished jurisdiction "for the special master to issue a supplemental report resolving the factual issue concerning petitioner's entitlement to a belated appeal."

On March 23, 2001, Amended Findings of Fact and Law dated two days earlier were filed with this court, finding that Brooks never affirmatively waived his right to appeal and that Brooks never discussed the pros and cons of an appeal with his trial lawyer. (The latter finding at least seems to be based solely on defense counsel's testimony that he had no recollection.)

On May 2, 2001, this court again relinquished jurisdiction so the trial court could resolve "the factual dispute of whether petitioner timely requested that trial counsel file a notice of appeal." On June 4, 2001, the special master's Second Amended Findings of Fact and Law dated May 31, 2001, were filed with this court, and today's decision is the result. Perhaps implicit in the majority opinion is the view that the special master's findings set out above ought not control, because the state was not on notice, before the only evidentiary hearing that took place, that the petitioner was relying on or that the court was considering Flores-Ortega. I share the view that the state was entitled to adequate notice so the matter could be litigated fairly and all concerned could have confidence in the results. The special master did not, moreover, explicitly state "that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, [petitioner] would have timely appealed." Flores-Ortega, 528 U.S. at 484,120 S.Ct. 1029.

But, in the circumstances of the present case, denial of the petition on account of a pleading deficiency ought not foreclose all possibility of relief. See generally Brown v. State, 802 So.2d 526, 527-28 (Fla. 1st DCA 2001)

; Hickey v. State, 763 So.2d 1213, 1214 (Fla. 1st DCA 2000) ("We believe movant should be given a short, specific period of time beyond the limitation period to cure the procedural defect."); Brown v. State, 689 So.2d 1280, 1280 (Fla. 5th DCA 1997) ("We affirm ... without prejudice to Brown to file, within 30 days of this opinion, a rule 3.850 motion raising this issue."); Thomas v. State, 686 So.2d 699, 700 (Fla. 4th DCA 1996) (affirming "the trial court's order of dismissal [but holding that it] should have been with leave to file an amended motion conforming to [certain pleading] requirements").

BROWNING, J., concurring in part and dissenting in part.

I concur with the majority en banc opinion. However, I also concur with Judge Ervin on certification and, accordingly, dissent from the majority en banc opinion to the extent that certification of Judge Ervin's question, or a similar question, is omitted.

ERVIN, J., dissenting.

The majority's one-paragraph opinion denying Brooks' petition for a belated appeal makes no attempt to distinguish the facts in this case from those in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); indeed, it fails altogether to acknowledge its potential applicability. Because I am of the firm belief that Flores-Ortega requires, before deciding the issue of whether Brooks is entitled to an appeal, that jurisdiction be first relinquished to the special master to determine if appellant, as a rational defendant, would have wanted to appeal, I dissent.

The essential facts in Flores-Ortega and Brooks are nearly indistinguishable.¹ Following sentencing in both cases, the defendants were advised by the trial court of their right to appeal. Brooks alleged in his petition that he had timely requested his attorney to file an appeal, but that he had not done so, whereas Flores-Ortega contended that his lawyer had not filed a timely notice of appeal, as she had promised.² In both cases evidentiary hearings were conducted to resolve the disputed factual allegations. In both cases the fact-finders determined that the allegations were not established; in Brooks the special master accepted the testimony of counsel over that of Brooks that no request was made, but also found Brooks had not waived his right to appeal; in Flores-Ortega the magistrate found, based on defense counsel's testimony that she could not remember whether she had made a promise to her client to appeal, that no such promise was given.

The judicial officers assigned in both cases did not limit their findings to a decision simply resolving the limited issues framed by the defendants' pleadings, but made the additional determination, based on the attorneys' failure to remember whether they had discussed with their clients their appeal rights, that no such consultation had occurred. As a result, the special master in Brooks recommended that Brooks be afforded an appeal as a matter of law, because of counsel's failure to comply with the duty to confer with the defendant regarding the right to appeal. Although the magistrate's recommendation that Flores-Ortega's petition be denied, based on conflicting evidence regarding the alleged promise to appeal, was accepted by the trial...