Trowell v. State, No. 95-3082

CourtCourt of Appeal of Florida (US)
Writing for the CourtERVIN; WEBSTER, J., concurs with written opinion, in which BARFIELD; BOOTH; JOANOS; MINER; KAHN; LAWRENCE; WEBSTER; JOANOS; In the majority opinion; MINER; WOLF; KAHN
Citation706 So.2d 332
Docket NumberNo. 95-3082
Decision Date20 January 1998
Parties23 Fla. L. Weekly D307 Ronald TROWELL, Appellant, v. STATE of Florida, Appellee.

Page 332

706 So.2d 332
23 Fla. L. Weekly D307
Ronald TROWELL, Appellant,
v.
STATE of Florida, Appellee.
No. 95-3082.
District Court of Appeal of Florida,
First District.
Jan. 20, 1998.

Page 333

Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.

ON REHEARING EN BANC

ERVIN, Judge.

Ronald Trowell appeals the denial of his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, for post-conviction relief and belated appeal of the judgment of conviction based upon his guilty plea to armed burglary and first-degree murder. As grounds therefor, appellant alleged that his court-appointed counsel (1) failed to honor his request to call witnesses to testify on his behalf before entry of the plea, (2) failed to raise an objection that appellant was under the influence of medication at the time of the plea, and (3) failed to file a notice of appeal, contrary to his request. Grounds one and two of the motion allege insufficient facts to state a basis for relief. Therefore, we affirm the trial court's order with respect to these claims without further discussion. We reverse, however, the lower court's ruling on appellant's claim of entitlement to a belated appeal.

In denying the defendant's motion for belated appeal, the trial court cited Thomas v. State, 626 So.2d 1093 (Fla. 1st DCA 1993), and concluded that the defendant was not entitled to an appeal, because he had entered into a negotiated guilty plea for a life sentence and waived his right to appeal the matters relating to the judgment. We cannot agree.

The court's decision in Thomas is inconsistent with a substantial body of case law from this court and other district courts of 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, 596 So.2d 502 (Fla. 1st DCA 1992); Courson v. State, 652 So.2d 512 (Fla. 5th DCA 1995); Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993), on remand, 643 So.2d 677 (Fla. 4th DCA 1994); Viqueira v. Roth, 591 So.2d 1147 (Fla. 3d DCA 1992). To the extent that Thomas requires a defendant to state in a rule 3.850 motion for belated appeal what issues he or she would have raised on appeal, and whether or how those issues would have been dispositive, or how appellant was otherwise prejudiced by his counsel's failure to file a notice of appeal, we recede from it as being contrary to controlling precedent from this court and the Florida Supreme Court.

The Florida Supreme Court addressed the reason why a defendant need not state meritorious issues in a 3.850 motion as a precondition to his or her right to a belated appeal

Page 334

from a criminal conviction in Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). In that case, the court devised the following procedure to determine one's eligibility to a belated appeal. The defendant was required to file a petition for writ of habeas corpus before the appropriate appellate court, 1 wherein only two issues were pertinent for resolution: first, did the defendant, if aware of his or her right to appeal, timely express the desire to appeal to the court, defense attorney or other appropriate person, and second, did the facts show a deprivation, through state action, of this right guaranteed to the defendant? 2 Id. at 241.

In outlining this process, the court specifically rejected the state's contention that the defendant must make a preliminary showing of arguable points on the merits in order to be entitled to an appeal. In so doing, it relied on Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), wherein the United States Supreme Court had rejected a similar argument. The Baggett court relied not only on Rodriquez, but also on two other Supreme Court decisions, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), dealing with an indigent defendant's right to appeal.

The facts in Rodriquez disclose that the indigent prisoner had filed a motion for postconviction relief under 28 U.S.C. § 2255, the federal counterpart to Florida Rule of Criminal Procedure 3.850, seeking a belated appeal, alleging that his retained counsel had fraudulently deprived him of his right to appeal. After the Ninth Circuit Court of Appeals affirmed the trial court's denial of the requested relief for the reason that the motion, contrary to its rule, failed to disclose what errors the petitioner would have raised on appeal, the Supreme Court granted certiorari and reversed the order of denial. In reaching its decision, the Court noted that an appeal from a criminal judgment of conviction is a matter of right. It also emphasized the disparity in legal ability which exists between a pro se litigant and a defendant with funds represented by a retained lawyer, observing:

Those whose education has been limited and those, like petitioner, who lack facility in the English language might have grave difficulty in making even a summary statement of points to be raised on appeal. Moreover, they may not even be aware of errors which occurred at trial. They would thus be deprived of their only chance to take an appeal even though they have never had the assistance of counsel in preparing one.... [T]he Ninth Circuit's requirement makes an indigent defendant face "the danger of conviction because he does not know how to establish his innocence." Moreover, the Ninth Circuit rule would require the sentencing court to screen out supposedly unmeritorious appeals in ways this Court rejected in Coppedge [v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962) ]. Those whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings. Accordingly, we hold that the courts below erred in rejecting petitioner's application for relief because of his failure to specify the points he would raise were his right to appeal reinstated.

Rodriquez, 395 U.S. at 330, 89 S.Ct. at 1717, 23 L.Ed.2d at 344 (emphasis added).

As the Court's analysis makes clear, there should be no difference between a defendant's right to a belated appeal, if the evidence discloses that the delay was not attributable

Page 335

to his or her own neglect, and the right to a timely appeal, insofar as any requirement that the defendant make a preliminary showing of merit. In both cases, a statement of meritorious issues is irrelevant to one's entitlement to appeal. Similarly, there should be no difference between a defendant's right to a belated appeal from a conviction following trial or after a plea, because, in either instance, if the appeal had been timely filed, an initial statement of arguable points would be irrelevant to the right to appeal.

Although Baggett involved a belated appeal following a jury trial, the opinion makes clear, with its references to Anders and Douglas, and its specific adoption of Rodriquez, that a defendant need not make a merit showing in order to seek a belated appeal from a conviction based on either a plea or verdict of guilt. Indeed, if the Florida Supreme Court had made the distinction the lower court approved below, its decision would have been at clear variance with the broad constitutional precepts announced in Rodriquez, Douglas and Anders.

In Douglas, the court held that an indigent prisoner was entitled to the assistance of counsel on appeal, that the due process and equal protection clauses of the Fourteenth Amendment demanded no less, and that a state could not deny the indigent such right by requiring him or her to make a preliminary showing of merit. In vacating the judgment of the California appellate court, which had denied the defendant the assistance of counsel on appeal because it had gone through the record and come to the conclusion that "no good whatever could be served by appointment of counsel," the United States Supreme Court made the following pertinent comments:

The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between "possibly good and obviously bad cases," but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.

Douglas, 372 U.S. at 357-58, 83 S.Ct. at 816, 9 L.Ed.2d at 815 (emphasis added).

The Court applied the same reasoning in another case decided the same day, wherein it was asked whether due process was offended by the state of Washington's practice of denying a transcript of the record at public expense to an indigent appellant, based upon a trial court's findings that the assignments of error were, in its judgment, frivolous and the evidence of guilt overwhelming. In striking down the practice of allowing the trial court to be virtually the sole arbiter of whether the appeal had merit, the Court explained:

In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that...

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27 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...State, 733 So.2d 1057 (Fla. 1st DCA 1999) (en banc decision released without antecedent publication of panel decision); Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998) (en banc decision released by general division without antecedent publication of panel decision, then withdrawn and rep......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...State, 733 So.2d 1057 (Fla. 1st DCA 1999) (en banc decision released without antecedent publication of panel decision); Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998) (en banc decision released by general division without antecedent publication of panel decision, then withdrawn and rep......
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • May 27, 1999
    ...Second Judicial Circuit, Tallahassee, Florida, for Respondent. PARIENTE, J. We have for review the decision in Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998) (en banc), which certified conflict with the decisions in Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987), Gonzalez v. State......
  • Walker v. State, No. 99-948.
    • United States
    • Court of Appeal of Florida (US)
    • August 4, 1999
    ...says he would have given if asked, and defense counsel does not recall one way or the other whether he was asked. See Trowell v. State, 706 So.2d 332, 338 (Fla. 1st DCA 1998) (en banc) ("In that Trowell's trial attorney has not denied that his client timely requested him to file an appeal, ......
  • Request a trial to view additional results
27 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...State, 733 So.2d 1057 (Fla. 1st DCA 1999) (en banc decision released without antecedent publication of panel decision); Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998) (en banc decision released by general division without antecedent publication of panel decision, then withdrawn and rep......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...State, 733 So.2d 1057 (Fla. 1st DCA 1999) (en banc decision released without antecedent publication of panel decision); Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998) (en banc decision released by general division without antecedent publication of panel decision, then withdrawn and rep......
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • May 27, 1999
    ...Second Judicial Circuit, Tallahassee, Florida, for Respondent. PARIENTE, J. We have for review the decision in Trowell v. State, 706 So.2d 332 (Fla. 1st DCA 1998) (en banc), which certified conflict with the decisions in Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987), Gonzalez v. State......
  • Walker v. State, No. 99-948.
    • United States
    • Court of Appeal of Florida (US)
    • August 4, 1999
    ...says he would have given if asked, and defense counsel does not recall one way or the other whether he was asked. See Trowell v. State, 706 So.2d 332, 338 (Fla. 1st DCA 1998) (en banc) ("In that Trowell's trial attorney has not denied that his client timely requested him to file an appeal, ......
  • Request a trial to view additional results

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