Faircloth v. State, 95-1644
| Citation | 661 So.2d 1292 |
| Decision Date | 01 November 1995 |
| Docket Number | No. 95-1644,95-1644 |
| Parties | 20 Fla. L. Weekly D2436 Michael T. FAIRCLOTH, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Michael T. Faircloth, Indiantown, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Aubin Wade Robinson, Assistant Attorney General, West Palm Beach, for appellee.
This is an appeal of an order denying appellant's rule 3.850 motion without evidentiary hearing, but with attachment of record excerpts, albeit not the determinative ones.
Appellant was convicted on a plea of guilty to one count resisting arrest with violence and one count petty theft. No direct appeal was taken from his conviction and sentence, although appellant alleges that he requested that his trial counsel file a notice of appeal.
Failure to timely seek appeal is ineffective assistance of trial counsel as a matter of law. State v. Meyer, 430 So.2d 440, 443 (Fla.1983). The issue is properly raised in a rule 3.850 motion. Stephenson v. State, 655 So.2d 86 (Fla.1995).
The trial court denied relief on the ground that the issue that appellant wished to raise in his appeal was without merit. That is not a proper ground for denial of relief. See Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993). It erred in conducting an inquiry into the merits of the proposed appeal, instead of determining the truth of appellant's allegation that he requested that his counsel file a notice of appeal and that counsel either neglected or refused to do so. We reverse and remand for that determination or for attachment of record excerpts which conclusively disprove appellant's claim that he asked his counsel to file a notice of appeal.
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State v. Trowell
...who had pleaded guilty and those who were convicted after a trial. The Fourth District relied on Meyer in Faircloth v. State, 661 So.2d 1292, 1293 (Fla. 4th DCA 1995), and concluded that the allegation that the defendant requested trial counsel to file a notice of appeal established ineffec......
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Gonzalez v. Singletary, 98-444
...with Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998) (en banc), review granted, (Fla. No. 92,393 March 5, 1998); Faircloth v. State, 661 So.2d 1292 (Fla. 4th DCA 1995); Owens v. State, 643 So.2d 105 (Fla. 1st DCA 1994); and Gunn v. State, 612 So.2d 643 (Fla. 4th DCA Defendant also petit......
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Gonzalez v. Singletary
...district court certified to be in conflict with the opinions in Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998), Faircloth v. State, 661 So.2d 1292 (Fla. 4th DCA 1995), Owens v. State, 643 So.2d 105 (Fla. 1st DCA 1994), and Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993). We have juris......
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Gonzalez v. State, 96-1314
...to the Florida Rules of Appellate Procedure, 685 So.2d 773 (Fla.1996).2 Other decisions taking the same view include Faircloth v. State, 661 So.2d 1292 (Fla. 4th DCA 1995), and Love v. State, 623 So.2d 1221 (Fla. 1st DCA 1993).3 Ironically, the result in Gunn appears to be correct even thou......