Owens v. State, No. 94-447

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation643 So.2d 105
Docket NumberNo. 94-447
Decision Date06 October 1994
Parties19 Fla. L. Weekly D2148 Clarence Devon OWENS, Appellant, v. STATE of Florida, Appellee.

Page 105

643 So.2d 105
19 Fla. L. Weekly D2148
Clarence Devon OWENS, Appellant,
v.
STATE of Florida, Appellee.
No. 94-447.
District Court of Appeal of Florida,
First District.
Oct. 6, 1994.

Page 106

Clarence Owens, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is before us on appeal from the trial court's summary denial of Owens' rule 3.850 motion for belated appeal. Owens pled guilty to second-degree murder and attempted armed robbery in a plea agreement filed January 10, 1992, and was sentenced respectively to consecutive terms of 40 years and 5 years on March 20, 1992. Owens filed a 3.850 motion for belated appeal on December 28, 1993, claiming ineffective assistance of counsel in failing to honor his timely request to file a notice of appeal. The trial court summarily denied Owens' 3.850 motion on January 19, 1994, stating that the motion "fails to allege the issues that he would have raised on appeal, whether and how those issues would have been dispositive in this case, or how he was otherwise prejudiced by his trial attorney's alleged failure to file a notice of appeal." The trial court further noted that Owens' plea agreement reserved no issues for appellate review, and attached a copy of the plea agreement to the order.

A rule 3.850 motion alleging that a defendant made a timely request to appeal which counsel failed to honor creates a colorable claim of ineffective assistance, requiring either an evidentiary hearing or attachment of those portions of the record negating the allegation. Williams v. State, 596 So.2d 501 (Fla. 1st DCA 1992). Entitlement to relief under such a motion is not dependent on any preliminary showing on the merits. Wimberly v. State, 634 So.2d 231, 232 (Fla. 1st DCA 1994); Viqueira v. Roth, 591 So.2d 1147, 1148-49 (Fla. 3d DCA 1992).

Accordingly, we must reverse the trial court's summary denial of Owens' 3.850 motion and remand for either an evidentiary hearing or attachment of those portions of the record negating Owens' allegation. REVERSED AND REMANDED.

BOOTH, ALLEN and BENTON, JJ., concur.

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5 practice notes
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...appeal. See, e.g., Moore v. State, 661 So.2d 921 (Fla. 1st DCA 1995); Kiser v. State, 649 So.2d 333 (Fla. 1st DCA 1995); Owens v. State, 643 So.2d 105 (Fla. 1st DCA 1994); Clayton v. State, 635 So.2d 48 (Fla. 1st DCA 1994); Hudson v. State, 596 So.2d 1213 (Fla. 1st DCA 1992); Short v. State......
  • Gonzalez v. Singletary, No. 98-444
    • United States
    • Court of Appeal of Florida (US)
    • July 1, 1998
    ...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 petitions for a belated appeal of an order denying his m......
  • Gonzalez v. Singletary, No. 93,547.
    • United States
    • United States State Supreme Court of Florida
    • September 2, 1999
    ...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 jurisdiction. See art. V, § 3(b)(4), Fla. We recently app......
  • Trusty v. State, No. 95-3258
    • United States
    • Court of Appeal of Florida (US)
    • July 2, 1996
    ...and remand for either an evidentiary hearing or attachment of those portions of the record refuting Trusty's allegation. Owens v. State, 643 So.2d 105 (Fla. 1st DCA 1994); Short v. State, 596 So.2d 502 (Fla. 1st DCA 1992); see also Gunn v. State, 612 So.2d 643 (Fla. 4th DCA We affirm, witho......
  • Request a trial to view additional results
5 cases
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...appeal. See, e.g., Moore v. State, 661 So.2d 921 (Fla. 1st DCA 1995); Kiser v. State, 649 So.2d 333 (Fla. 1st DCA 1995); Owens v. State, 643 So.2d 105 (Fla. 1st DCA 1994); Clayton v. State, 635 So.2d 48 (Fla. 1st DCA 1994); Hudson v. State, 596 So.2d 1213 (Fla. 1st DCA 1992); Short v. State......
  • Gonzalez v. Singletary, No. 98-444
    • United States
    • Court of Appeal of Florida (US)
    • July 1, 1998
    ...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 petitions for a belated appeal of an order denying his m......
  • Gonzalez v. Singletary, No. 93,547.
    • United States
    • United States State Supreme Court of Florida
    • September 2, 1999
    ...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 jurisdiction. See art. V, § 3(b)(4), Fla. We recently app......
  • Trusty v. State, No. 95-3258
    • United States
    • Court of Appeal of Florida (US)
    • July 2, 1996
    ...and remand for either an evidentiary hearing or attachment of those portions of the record refuting Trusty's allegation. Owens v. State, 643 So.2d 105 (Fla. 1st DCA 1994); Short v. State, 596 So.2d 502 (Fla. 1st DCA 1992); see also Gunn v. State, 612 So.2d 643 (Fla. 4th DCA We affirm, witho......
  • Request a trial to view additional results

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