Brown v. State, 98-687
Decision Date | 29 May 1998 |
Docket Number | No. 98-687,98-687 |
Court | Florida District Court of Appeals |
Parties | 23 Fla. L. Weekly D1309 Terrance L. BROWN, Petitioner, v. STATE of Florida, Respondent. |
Terrance L. Brown, Raiford, Pro Se.
Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
Brown petitions for a writ of habeas corpus, seeking a belated appeal of his 1995 conviction for aggravated battery with a firearm 1 and attempted first degree murder. 2 He alleges he requested his trial attorney to file an appeal, but the attorney failed to do so. This allegation is facially sufficient under Florida Rule of Appellate Procedure 9.140(j)(2)(F), 3 but the rule also requires a petition to be filed within two years. However, this rule became effective January 1, 1997, and the time limit created by it commenced with its effective date. Thus this petition is not time barred by this rule.
The state argues Brown's belated appeal is barred under the doctrine of laches. McCray v. State, 699 So.2d 1366 (Fla.1997). In this case, Brown was sentenced on January 19, 1996, and his petition was filed March 11, 1998. He alleges no reason for the delay in filing this petition--somewhat more than two years.
We have found no case in which the doctrine of laches was applied in a case involving such a short a period of time. Compare Anderson v. Singletary, 688 So.2d 462 (Fla. 4th DCA 1997) ( ); Xiques v. Dugger, 571 So.2d 3 (Fla. 2d DCA 1990) ( ); Smith v. Wainwright, 425 So.2d 618 (Fla. 2d DCA 1982) ( ); Walker v. Wainwright, 411 So.2d 1038 (Fla. 1st DCA 1982) ( ); Babson v. Wainwright, 376 So.2d 1187 (Fla. 5th DCA 1979), cert. denied, 388 So.2d 1109 (Fla.1980) ( ); Remp v. State, 248 So.2d 677 (Fla. 1st DCA 1970) ( ). See also Tyler v. Beto, 391 F.2d 993 (5th Cir.1968), cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969) ( ).
Since the state concedes it cannot refute Brown's allegation that he requested his attorney to prosecute an appeal, an evidentiary hearing to establish that fact appears to be a waste of time. Accordingly, we grant Brown's petition for a belated appeal, and forward a copy of this order to the trial court to serve as the notice of appeal. Fla. R.App. P. 9.140(j)(5)(D).
Petition for Writ of Habeas Corpus GRANTED.
1 § 784.045, Fla. Stat. (1995).
2 §§ 782.04, 777.04, Fla. Stat. (1995).
3 Rule 9.140(j) provides:
(2) Contents. The petition shall be in the form...
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Chase v. State, 98-01604.
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