Remp v. State
| Decision Date | 21 July 1970 |
| Docket Number | No. N-427,N-427 |
| Citation | 248 So.2d 677 |
| Court | Florida District Court of Appeals |
| Parties | John Stanley REMP a/k/a Jack Roberts, Petitioner, v. STATE of Florida, Respondent. |
Robert P. Miller, Public Defender, for petitioner.
Earl Faircloth, Atty. Gen., J. Christian Meffert, Asst. Atty. Gen., for respondent.
We issued our rule nisi in this original habeas corpus action by which petitioner seeks a belated full appellate review in accordance with the principles enunciated in Powe v. State, 216 So.2d 446 (Fla.1968).
The return to the rule nisi has been filed by the Attorney General. The return brings to our attention certain facts omitted by the petitioner. Petitioner avers that in November, 1958, he was convicted of rape and sentenced to life imprisonment. He then avers that at the time of his conviction and sentence, he asked court-appointed counsel to file an appeal in his behalf and that appointed counsel advised that he would not do so. Petitioner then avers that the failure of his defense counsel to file an appeal when asked to do so violated his constitutional rights as pronounced in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and like cases. This line of cases has been followed as controlling law by the courts of this State.
The State's return to the rule advises that on November 16, 1964, petitioner filed a motion to vacate his judgment and sentence under Florida Criminal Procedure Rule 1, the denial of which by the trial court was appealed to this court; and on July 14, 1965, we dismissed the said appeal for failure to prosecute, thus rendering final the trial court's order of denial. Then on December 16, 1965, petitioner filed a petition for a writ of habeas corpus in the Florida Supreme Court which was denied on February 15, 1966. On July 25, 1966, petitioner filed a petition for writ of habeas corpus in the United States District Court, Middle District of Florida, and that petition was denied as being without merit. Copies of the appropriate pleadings and orders referred to next above are attached as exhibits to the State's return.
The State further avers in its return that the lawyer who had been appointed to defend petitioner at his trial and which lawyer petitioner contends refused to take an appeal to review the judgment of conviction and sentence is now deceased. Hence, the only person who could possibly refute petitioner's contention that he requested an appeal is now dead.
We agree with the State's contention that petitioner, thirteen years after his conviction, is now estopped from asserting for the first time that he desired to take an appeal but his court-appointed lawyer declined to perfect same. In none of the several efforts resorted to by petitioner to set aside his conviction and sentence has petitioner contended or asserted that he was deprived of a direct appeal. He does so now for the first time.
The State contends that the doctrine of laches is applicable and precludes petitioner's right to now claim his entitlement to a belated appeal.
We hold that in cases such as the one at hand where a petitioner refrains or delays for an inordinate period of time from asserting an alleged infringement of his constitutional rights until such time as the only person who could rebut his allegations is deceased or otherwise unavailable, his allegations can and should be dismissed. Tyler v. Beto, 391 F.2d 993 (5th Cir. 1968). It is obvious from petitioner's assertion of post-conviction remedies on several occasions that he was not unaware that the courts were available for the vindication of any deprivation of his constitutional rights, if such deprivations existed.
In Dean v. North Carolina, 269 F.Supp. 986 (M.D.N.C.1967), the court stated:
'* * * The inordinate delay has made a retrial exceedingly difficult, if not impossible. Mathis v. United States, 4 Cir., 369 F.2d...
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Blatch v. State
...of laches, sustainable when there has been a lack of due diligence by the defendant and prejudice to the State, see Remp v. State, 248 So.2d 677 (Fla.1st DCA 1970), might apply to Blatch's claim. See also Babson v. Wainwright, 376 So.2d 1187 (Fla.5th DCA 1979); Broxson v. Wainwright, 271 So......
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Jones v. State
...of time." (Footnote omitted)); see also Bartz, 740 So.2d at 1245 (The District Court of Appeal of Florida cited Remp v. State, 248 So.2d 677, 678 (Fla.Dist.Ct.App.1970) ("The inordinate delay has made a retrial exceedingly difficult, if not impossible." (Citation omitted))). To establish pr......
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Wills v. State
...v. Blackburn, 750 F.2d 438 (1985); Indiana, Holmes v. State of Indiana, 591 N.E.2d 594 (Ind.App. 3 Dist.1992); Florida, Remp v. State, 248 So.2d 677 (Fla.App.1970). Alabama, Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991); Colo., People v. Bravo, 692 P.2d 325 This Court has held in Burford......
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Walker v. Wainwright, AF-173
...of laches applies to preclude this belated appeal. Broxson v. Wainwright, 271 So.2d 478 (Fla. 1st DCA 1973); and Remp v. State, 248 So.2d 677 (Fla. 1st DCA 1970). Petitioner has attached pages from his trial transcript showing he had been advised of his right to appeal and to have counsel a......