Hall v. Wainwright, 29727.

• Decision Date: 09 April 1971
• Docket Number: No. 29727.,29727.
• Citation: 441 F.2d 391
• Parties: Willie Charles HALL, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 391 (1971)

Willie Charles HALL, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellant.

No. 29727.

United States Court of Appeals, Fifth Circuit.

April 9, 1971.

Earl Faircloth, Atty. Gen., J. Christian Meffert, Nelson E. Bailey, Asst. Attys. Gen., Tallahassee, Fla., for respondent-appellant.

Stephen Stratford, Jacksonville, Fla., for petitioner-appellee.

Before TUTTLE, AINSWORTH and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

This is an appeal by the respondent below, the Director of the Florida Division of Corrections, from a district court order granting habeas corpus relief to the petitioner-appellee Willie Charles Hall. We modify the district court's order and affirm it as modified, and direct that the lower court remand to the state courts of Florida for further proceedings. We will refer in this opinion to the parties as they appeared below: as petitioner and respondent.

On July 21, 1967, a jury in the Circuit Court for the Fifth Florida Judicial Circuit found the petitioner guilty of breaking and entering with intent to commit rape. On November 3, 1967, the petitioner was sentenced to a term of six months to ten years in the custody of the Florida Division of Corrections. Petitioner was represented by counsel retained by a relative. The state trial judge did not inform the petitioner of his right to appeal at the time he was sentenced. On December 2, 1967, in response to an inquiry from the petitioner — then incarcerated at the Florida State Prison at Raiford — petitioner's trial counsel wrote him that his employment was only to represent the petitioner at trial, and suggested that the petitioner contact the public defender if he wished to take an appeal. Prior to this time no discussion had taken place between petitioner and his trial counsel of the question of an appeal and its possible success or otherwise. On December 4, 1967, the petitioner filed a motion for post-conviction relief under Florida Criminal Procedure 1.850, 33 F.S.A. This motion was denied by his trial court on December 20, 1967.

On January 17, 1968, the Public Defender was appointed to represent the petitioner for purposes of appeal. The Public Defender, despite the fact that the appeal period from the criminal conviction would not expire until February 1, 1968, did not file notice of direct appeal of the petitioner's conviction, but instead on March 14, 1968, filed a notice of appeal of the denial of the Rule 1.850 motion for post-conviction relief. Since this notice of appeal was filed eighty-five days after the denial, and a civil appeal was at that time required by Florida Appellate Rule 3.2, subd. b, 32 F.S.A. to be taken within sixty days of the order of denial by the Circuit Court, the appeal was dismissed by the Florida Second District Court of Appeals as taken out of time.¹

On November 19, 1968, petitioner filed a petition for writ of habeas corpus in the federal district court, alleging that he had been denied effective representation by his trial counsel and that he had been denied the right to appeal his conviction. The district court found for the petitioner on both claims and ordered that the petitioner be retried within 120 days or released. The respondent objected to the district court's hearing any evidence on the issue of the competency of petitioner's trial counsel because petitioner had not presented this issue to the state appellate courts. The objection was overruled.

Petitioner was sentenced on November 3, 1967. Under Florida Appellate Rule 6.2, as it existed in 1967 and until October 1, 1968, the petitioner had 90 days in which to take a direct appeal from his criminal...