Gunn v. State, No. 92-3112

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM; GLICKSTEIN, C.J., and DELL; FARMER; FARMER
Citation612 So.2d 643
Parties18 Fla. L. Weekly D270 Dexter GUNN, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 92-3112
Decision Date13 January 1993

Page 643

612 So.2d 643
18 Fla. L. Weekly D270
Dexter GUNN, Appellant,
v.
STATE of Florida, Appellee.
No. 92-3112.
District Court of Appeal of Florida,
Fourth District.
Jan. 13, 1993.
Rehearing, Rehearing En Banc and/or Certification Denied
Feb. 26, 1993.

Page 644

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

This is an appeal from an order denying without hearing a rule 3.850 motion. We reverse and remand for an evidentiary hearing.

Appellant changed his plea during a criminal proceeding against him (as did also a codefendant), which was almost completed. He was "habitualized" as a violent habitual offender and sentenced to forty years in prison, being eligible for release no sooner than after serving fifteen years.

In his motion for post-conviction relief appellant said he moved the next day to withdraw his plea, but the motion was denied. According to his motion appellant wished to appeal, but counsel failed timely to prosecute the appeal as requested.

The motion called attention to the change in pertinent law represented by State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla.1990) (rule 3.850 motion filed in the trial court is correct vehicle for seeking permission for belated appeal where trial counsel was ineffective in not filing appeal as requested by defendant).

The successor trial judge to the trial judge who presided over the criminal proceedings denied the motion as legally insufficient, explaining that there was nothing in the record that showed that appellant moved to set aside the guilty plea and it was denied; and that appellant failed to carry his burden of showing that he had sought to withdraw his guilty plea.

We conclude the trial court erred by looking into the wrong question. What the court needed to address was only whether appellant had requested his trial counsel to appeal, to no avail. Even if there was no denial of a request to withdraw plea, there could have been some appealable issue. A guilty plea does not rule out every conceivable opportunity to appeal.

Florida, First District was not calculated to confer on the circuit court authority to decide whether a defendant has an appealable issue. Rather, it made the rule 3.850 procedure the avenue for determining whether counsel gave...

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18 practice notes
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...1st DCA 1992); Short v. State, 596 So.2d 502 (Fla. 1st DCA 1992); Courson v. State, 652 So.2d 512 (Fla. 5th DCA 1995); Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993), on remand, 643 So.2d 677 (Fla. 4th DCA 1994); Viqueira v. Roth, 591 So.2d 1147 (Fla. 3d DCA 1992). To the extent that Thom......
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • May 27, 1999
    ...made a timely request of counsel to file an appeal and counsel failed to do so. See, e.g., Trowell, 706 So.2d at 337; Gunn v. State, 612 So.2d 643, 645 (Fla. 4th DCA 1993). In contrast, the Second and Third Districts have held that if a defendant pleaded guilty, the petition seeking a belat......
  • Love v. State, No. 92-3586
    • United States
    • Court of Appeal of Florida (US)
    • September 10, 1993
    ...So.2d 942 (Fla. 2d DCA 1991). In a similar vein, a guilty plea does not rule out every conceivable opportunity to appeal. Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993). Among other things, one who pleads guilty or nolo contendere can raise the issue of the voluntary and intelligent natur......
  • Long v. State, No. 95-4515
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1996
    ...failed to allege that he requested counsel to file an appeal. Battles v. State, 668 So.2d 333 (Fla. 1st DCA 1996); Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993); Hudson v. State, 596 So.2d 1213 (Fla. 1st DCA 1992)(a defendant states a colorable claim of ineffective assistance with allega......
  • Request a trial to view additional results
18 cases
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...1st DCA 1992); Short v. State, 596 So.2d 502 (Fla. 1st DCA 1992); Courson v. State, 652 So.2d 512 (Fla. 5th DCA 1995); Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993), on remand, 643 So.2d 677 (Fla. 4th DCA 1994); Viqueira v. Roth, 591 So.2d 1147 (Fla. 3d DCA 1992). To the extent that Thom......
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • May 27, 1999
    ...made a timely request of counsel to file an appeal and counsel failed to do so. See, e.g., Trowell, 706 So.2d at 337; Gunn v. State, 612 So.2d 643, 645 (Fla. 4th DCA 1993). In contrast, the Second and Third Districts have held that if a defendant pleaded guilty, the petition seeking a belat......
  • Love v. State, No. 92-3586
    • United States
    • Court of Appeal of Florida (US)
    • September 10, 1993
    ...So.2d 942 (Fla. 2d DCA 1991). In a similar vein, a guilty plea does not rule out every conceivable opportunity to appeal. Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993). Among other things, one who pleads guilty or nolo contendere can raise the issue of the voluntary and intelligent natur......
  • Long v. State, No. 95-4515
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1996
    ...failed to allege that he requested counsel to file an appeal. Battles v. State, 668 So.2d 333 (Fla. 1st DCA 1996); Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993); Hudson v. State, 596 So.2d 1213 (Fla. 1st DCA 1992)(a defendant states a colorable claim of ineffective assistance with allega......
  • Request a trial to view additional results

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