Davidson v. Wainwright
| Decision Date | 12 January 1983 |
| Docket Number | No. 82-2448,82-2448 |
| Citation | 436 So.2d 134 |
| Parties | Martha DAVIDSON, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for petitioner.
No appearance for respondent.
Petitioner seeks a writ of habeas corpus to obtain delayed appellate review. The circumstances are identical to those in Potts v. Wainwright, 413 So.2d 156 (Fla. 4th DCA 1982) (). In both cases the public defender failed to file a timely notice of appeal; and by unpublished order, this court dismissed the appeal as untimely. 1 In Potts, we granted the petition for writ of habeas corpus and permitted the matter to proceed as a delayed appeal; and we do the same herein.
We take note, however, that in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), the court held:
With respect to Dodson's § 1983 claims against Shepard, we decide only that a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.
Id. 102 S.Ct. at 453 (footnote omitted). As a result, the court in Meyer v. State, 415 So.2d 70 (Fla. 5th DCA 1982), while granting a like petition under similar circumstances, certified the following questions to the supreme court as being of great public importance:
A. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, 454 U.S. 312, 102 S.Ct. 445, 72[sic] L.Ed.2d 509 (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PUBLICLY APPOINTED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?
B. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, 454 U.S. 312, 102 S.Ct. 445, 72[sic] L.Ed.2d 509 (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PRIVATELY RETAINED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?
In Epps v. Wainwright, 420 So.2d 659 (Fla. 4th DCA 1982), we deemed the two questions to be of the same significance and certified them as well. We do so again and further note the following comments of the Fifth District Court of Appeal in Meyer:
The ethical obligation of an attorney requires diligent attention to the legal problems of his client. No lawyer can ethically neglect a legal matter entrusted to him, nor handle it incompetently, Fla.Bar Code of Prof.Resp., DR 6-101, DR 7-101(A), and he should be sanctioned when he does. The fact that the courts have extricated the client from the consequences of the lawyer's neglect to timely file an appeal does not convert the neglect of a legal duty to something less. We therefore believe that we must comply with our own ethical obligations to sanction lawyers who neglect their legal and professional duty. We have already notified the public defenders in this district that any such neglect...
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State v. Davidson
...Fifteenth Judicial Circuit, West Palm Beach, for respondent. PER CURIAM. The Fourth District Court of Appeal in Davidson v. Wainwright, 436 So.2d 134 (Fla. 4th DCA 1983), certified to us as a question of great public importance the same question we subsequently addressed in State v. Meyer, ......