Potts v. Wainwright
| Decision Date | 28 April 1982 |
| Docket Number | No. 82-211,82-211 |
| Citation | 413 So.2d 156 |
| Parties | Willie POTTS, Jr., Petitioner, v. Louie WAINWRIGHT, Secretary, Department of Corrections, Respondent. |
| Court | Florida District Court of Appeals |
Defendant's trial counsel, an assistant public defender in the Fifteenth Judicial Circuit, failed to file a timely notice of appeal because she filed a motion to mitigate the defendant's sentence pursuant to Rule 3.800(b), Fla.R.Crim.P., and labored under the impression that such a motion tolled the 30-day period for filing a notice of appeal. See Rules 9.140(b)(2) and 9.020(g), Fla.R.App.P; Strucki v. State, 365 So.2d 222 (Fla. 4th DCA 1979). The trial court denied the motion to mitigate on May 4, 1981, and defense counsel filed a notice of appeal on May 19, 1981. This court, in an unpublished order, dismissed the appeal for lack of jurisdiction. See Guzman v. State, 364 So.2d 523 (Fla. 2d DCA 1978).
Next, defendant's appellate counsel, also an assistant public defender in the Fifteenth Judicial Circuit, filed a petition for a writ of habeas corpus seeking delayed appellate review pursuant to the dictates of Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). Initially, with one judge dissenting, this court denied the petition in an unpublished order which cited Adams v. State, 380 So.2d 421 (Fla.1980). Upon consideration of defendant's motion for rehearing, however, we have concluded that our reliance upon Adams was misplaced and that the motion for rehearing should be granted.
Adams v. State, supra, involved a post-trial motion for post-conviction relief. It was originally filed by the Office of the Public Defender for the Fifteenth Judicial Circuit, but was subsequently assigned to the Office of the Public Defender for the Nineteenth Judicial Circuit--the office which had represented the defendant at trial. The motion contained eleven specific charges that the defendant had been denied effective assistance of counsel at trial. Since the state challenged these allegations, an evidentiary hearing was necessary and it was obvious that trial counsel would be called to testify. Thus, the Public Defender for the Nineteenth Judicial Circuit was faced with a hopeless conflict of interest which precluded his representation of the defendant in the post-conviction proceeding.
In the case at bar, the state has challenged none of the factual allegations in the petition for delayed appellate review. Consequently, there is no need for an evidentiary hearing and defense counsel is not faced with the ethical prohibition against serving as an advocate and a witness in the same evidentiary proceeding. Furthermore, it is beyond question that the defendant/petitioner in this case was denied direct appellate review because of state action or, perhaps more accurately phrased, state inaction, i.e., the failure to file a timely notice of appeal. Thus, he has an absolute right to delayed appellate review. Baggett v. Wainwright, supra; Pressley v. Wainwright, 540 F.2d 818 (5th Cir. 1976).
We are confident that the Office of the Public Defender for the Fifteenth Judicial Circuit is fully competent and ethically correct in representing the petitioner in his effort to obtain delayed appellate review. Accordingly, we grant the motion for rehearing, vacate our order of March 3, 1982, grant the petition for writ of habeas corpus and permit delayed appellate review.
It is so ordered.
HURLEY, J., concurs specially with opinion.
In addition to the above, I wish to express the view that a motion to mitigate, filed pursuant to Rule 3.800(b), Fla.R.Crim.P., is the functional equivalent of a motion to alter or amend. The latter, of course, tolls the rendition of a final judgment. See Rule 9.020(g), Fla.R.App.P. Thus, I submit we erred in the first instance by dismissing appellant's direct appeal.
Recently, in the case of Doctor's Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190, (Fla.1982), ...
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