Flores v. Wainwright, 70--793
| Citation | 240 So.2d 816 |
| Decision Date | 13 November 1970 |
| Docket Number | No. 70--793,70--793 |
| Parties | Juan FLORES, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Adult Corrections, State of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Juan Flores, in pro. per.
Flores seeks appellate review of denial of his third motion pursuant to Fla. Cr.PR 1.850, 33 F.S.A., asserting that the appointed counsel assigned him said that he would appeal but didn't. His right to appellate review through habeas corpus where denied a normal appeal through state action is clear. Baggett v. Wainwright, Fla.1969, 229 So.2d 239. This applies as well to denial of appeal from post-conviction proceedings. Cappetta v. Wainwright, Fla.1967, 203 So.2d 609.
Flores alleges a language problem which caused him to think that he was pleading guilty to a violation of Fla.Stat. § 810.05, F.S.A., breaking and entering with intent to commit a misdemeanor, which carries a maximum penalty of five years, whereas he is presently serving a fifteen year sentence for breaking and entering with intent to commit a felony.
It is clear that Flores' claim that his plea was not made understandingly and voluntarily ought to be heard under Rule 1.850 and that it is not barred by prior presentation to the court so long as it has not been considered and ruled upon. State v. Reynolds, Fla.1970, 238 So.2d 600. See also Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Johnson v. Wainwright, Fla.1970, 238 So.2d 590; Rudolph v. State, Fla.App.1970, 230 So.2d 14.
Flores' petition adequately asserts that his state-furnished counsel said he would appeal but didn't. The record of the post-conviction proceeding which he seeks to review is not before us, so we cannot evaluate it, but we do suggest that in the light of our Supreme Court's recent decision in Reynolds, Flores might want to abandon this route to review, consult with the Public Defender for the Tenth Circuit and file a new petition in the trial court under Rule 1.850. This procedure will save everybody concerned a lot of time. Accordingly, we recognize the adequacy of the petition and grant the rule nisi without prejudice to Flores' abandonment of habeas corpus and proceeding in the trial court after consultation with counsel.
To continue reading
Request your trial
-
Nova v. State, 82-1766
...v. United States, 371 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Lawson v. State, 231 So.2d 205 (Fla.1970); Flores v. Wainwright, 240 So.2d 816 (Fla. 2d DCA 1970); Richardson v. State, 202 So.2d 137 (Fla. 3d DCA 1967); Weeks v. State, 201 So.2d 764 (Fla. 3d DCA 1967); Hall v. State, 183 ......
-
McCrae v. State
...their merits, and not where the previous motion was summarily denied or dismissed for legal insufficiency. See, e.g., Flores v. Wainwright, 240 So.2d 816 (Fla. 2d DCA 1970); Reynolds v. State, 224 So.2d 769 (Fla. 2d DCA 1969), cert. discharged, 238 So.2d 598 (Fla.1970); Taylor v. State, 181......
-
Curry v. Wainwright, AO-301
...See Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967); Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967); and Flores v. Wainwright, 240 So.2d 816 (Fla. 2nd DCA 1970). ...
-
Ward v. Dugger, 87-131
...229 So.2d 239 (Fla.1969). Belated appeals may be granted from orders on motions for post-conviction relief, Flores v. Wainwright, 240 So.2d 816 (Fla. 2d DCA 1970), and the actions of privately-retained counsel may justify the granting of a belated appeal, State v. Meyer, 430 So.2d 440 (Fla.......