Long v. Wainwright, BG-139
| Decision Date | 01 August 1985 |
| Docket Number | No. BG-139,BG-139 |
| Citation | 10 Fla. L. Weekly 1845,474 So.2d 7 |
| Parties | 10 Fla. L. Weekly 1845 Billy Joe LONG, Petitioner, v. Louie L. WAINWRIGHT, Respondent. |
| Court | Florida District Court of Appeals |
Susan K. Glant, Florida Institutional Legal Services, Inc., Gainesville, for petitioner.
Thomas H. Bateman, III, Asst. Atty. Gen., Tallahassee, for respondent.
Petitioner seeks a belated appeal of his 1976 convictions of sexual battery, kidnapping, and false imprisonment. The State disputes petitioner's entitlement thereto because of affidavits of petitioner's two trial lawyers who were members of the public defender's office in the Eighth Judicial Circuit. In the affidavits, counsel state that they communicated with petitioner on various occasions subsequent to his convictions and that petitioner did not indicate that he desired an appeal to be taken until after the 30 days for filing a notice had lapsed. 1
Respondent erroneously argues that those affidavits of trial counsel categorically refute petitioner's assertion that he is entitled to a belated appeal. At best, such affidavits would raise a factual dispute requiring a hearing to determine whether petitioner's right to an appeal was thwarted due to the actions of counsel. See State v. Meyer, 430 So.2d 440 (Fla.1983). In this case, however, we find that the affidavits of trial counsel are not sufficient to raise a factual dispute requiring hearing because it is clear from the admissions contained therein that counsel did not comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 2 Therefore, the allegations in the affidavits conclusively show that petitioner was deprived of his right to review, as articulated by the Supreme Court in Anders, due to the trial counsel's failure to even file a notice of appeal.
For the foregoing reasons, the petition for habeas corpus seeking a belated appeal is granted. Jurisdiction is temporarily relinquished to the trial court for 20 days for determination of petitioner's entitlement to appointed counsel, and appointment thereof if appropriate.
1 Because no direct appeal was ever taken, petitioner twice attempted to collaterally attack his convictions by filing motions pursuant to Rule 3.850, Florida Rules of Criminal Procedure. After denial of the first, petitioner filed a timely notice of appeal which inexplicably never reached ...
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Short v. State, 91-2463
...Thames v. State, 549 So.2d 1198, 1199 (Fla. 1st DCA 1989), citing State v. Meyer, 430 So.2d 440 (Fla.1983); Long v. Wainwright, 474 So.2d 7 (Fla. 1st DCA 1985), review denied, 482 So.2d 350 (Fla.1986). Accord Dortch v. State, 588 So.2d 342 (Fla. 4th DCA 1991); Turner v. State, 588 So.2d 104......
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Thames v. State
...to both court-appointed attorneys and those privately-retained by defendant. State v. Meyer, 430 So.2d 440 (Fla.1983); Long v. Wainwright, 474 So.2d 7 (Fla. 1st DCA 1985). It is not necessary to tender a filing fee at the time a notice of appeal is filed, Williams v. State, 324 So.2d 74 (Fl......
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Turner v. State, 91-498
...to both court-appointed attorneys and those privately-retained by defendant. State v. Meyer, 430 So.2d 440 (Fla.1983); Long v. Wainwright, 474 So.2d 7 (Fla. 1st DCA 1985). It is not necessary to tender a filing fee at the time a notice of appeal is filed, Williams v. State, 324 So.2d 74 (Fl......
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Long v. State, BG-139
...CURIAM. By a previous opinion of this court, Long's petition for habeas corpus seeking a belated appeal was granted. Long v. Wainwright, 474 So.2d 7 (Fla. 1st DCA 1985). By uncontested affidavits, petitioner has demonstrated that the original court file cannot be located and that the court ......