Viqueira v. Roth, 91-2698

Citation591 So.2d 1147
Decision Date14 January 1992
Docket NumberNo. 91-2698,91-2698
Parties17 Fla. L. Weekly D245 Alejandro VIQUEIRA, Petitioner, v. Richard D. ROTH, Sheriff of Monroe County, Respondent.
CourtCourt of Appeal of Florida (US)

Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for petitioner.

No appearance for respondent.

Before NESBITT, FERGUSON and COPE, JJ.

COPE, Judge.

Alejandro Viqueira petitions for a writ of habeas corpus for a belated appeal. We grant the petition.

Viqueira was convicted of a cocaine offense and sentenced to incarceration in June, 1991. Viqueira requested that the public defender file an appeal on his behalf, but no notice of appeal was filed.

In September, 1991 Viqueira wrote a letter to the trial judge explaining that, although he had requested the public defender to file an appeal, the public defender had failed to do so. The pro se letter requested a belated appeal and cited decisional law. Viqueira correctly stated that the failure to file a timely notice of appeal constituted ineffective assistance of counsel.

The trial court treated the letter as a motion for leave to file a belated appeal. The court denied the belated appeal because "the defendant does not state any basis for the underlying appeal in his motion." Although the trial court sent the order to Viqueira and the state attorney, the order did not inform Viqueira that he had a right to appeal the order.

In November, 1991 Viqueira petitioned this court for a writ of habeas corpus for a belated appeal. This court appointed the public defender for purposes of the petition for writ of habeas corpus, who filed, at this court's request, a supplemental memorandum. Although afforded an opportunity to reply, the state did not do so.

We conclude that Viqueira's position is well taken and that he is entitled to relief. We first address the failure of Viqueira's counsel to file a timely notice of appeal.

The issue presented in this case is a familiar one for the appellate courts but a new one for the trial courts. Prior to 1990, where there had been a failure to file a timely notice of appeal from a criminal conviction, the defendant's remedy was to file a petition for writ of habeas corpus for belated appeal. State v. District Court of Appeal, First District, 569 So.2d 439, 440-41 (Fla.1990). The failure to file a timely notice of appeal was viewed as ineffective assistance of appellate counsel, State v. Meyer, 430 So.2d 440, 443 (Fla.1983), and thus the petition for writ of habeas corpus was filed in the appellate court, rather than the trial court. Where the petition showed that counsel had failed to file a timely notice of direct appeal in a criminal case, ineffective assistance of counsel was demonstrated as a matter of law. Id. In such circumstances, the petition for writ of habeas corpus for belated appeal was routinely granted.

In 1990 the Florida Supreme Court changed the applicable procedure. The court now requires that where counsel has failed to file a timely notice of direct appeal in a criminal case, relief must be sought by motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure. State v. District Court of Appeal, First District, 569 So.2d at 441-42. While this was done for administrative reasons, id., it should also be noted that under the Florida Rules of Appellate Procedure, the responsibility of filing the notice of appeal (and the accomplishment of certain preliminary steps in the appeal) is that of trial counsel in a criminal case. See Fla.R.App.P. 9.140(b)(3)(A); Turner v. State, 588 So.2d 1042, 1044 (Fla. 5th DCA 1991); Thames v. State, 549 So.2d 1198 (Fla. 1st DCA 1989); see also Sec. 27.51(4), Fla.Stat. (1989) (public defender cases). Although the procedure has changed as a result of State v. District Court of Appeal, First District, the substantive principles governing such relief have not. See Turner v. State, 588 So.2d at 1044.

Where, as here, counsel has failed to file a timely notice of direct appeal, the defendant is entitled to an order under Rule 3.850 granting a belated appeal. Viqueira is entitled to an order granting the relief he requested.

In the instant case, the trial court took the position that a belated appeal should not be granted unless the defendant set forth the basis for the underlying appeal. The trial court's thinking apparently was that the movant had not shown a basis for relief without showing some possibility of success on the merits of the appeal. In so ruling, the court erred.

The...

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19 cases
  • Trowell v. State
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...(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 w......
  • Jordan v. State
    • United States
    • Court of Appeal of Florida (US)
    • September 16, 1998
    ......Meyer, 430 So.2d 440, 443 (Fla.1983) ; Viqueira v. Roth, 591 So.2d 1147, 1148-49 (Fla. 3d DCA 1992) . This allows time for the record to be ......
  • Gonzalez v. Singletary, 98-444
    • United States
    • Court of Appeal of Florida (US)
    • July 1, 1998
    ...did not advise defendant of the right to appeal and the deadline for doing so, we grant the belated appeal. See Viqueira v. Roth, 591 So.2d 1147, 1149 (Fla. 3d DCA 1992). On the merits, however, we concur with the trial court that the motion was time-barred. Defendant argues that he could n......
  • Short v. State, 91-2463
    • United States
    • Court of Appeal of Florida (US)
    • March 27, 1992
    ...appeal when requested to do so, the defendant is entitled to an order under rule 3.850 granting a belated appeal. Viqueira v. Roth, 591 So.2d 1147 (Fla. 3d DCA 1992). In addition, "entitlement to a belated direct appeal is not dependent on any preliminary showing on the merits." Viqueira, 5......
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