Viqueira v. Roth, No. 91-2698

CourtCourt of Appeal of Florida (US)
Writing for the CourtCOPE
Parties17 Fla. L. Weekly D245 Alejandro VIQUEIRA, Petitioner, v. Richard D. ROTH, Sheriff of Monroe County, Respondent.
Docket NumberNo. 91-2698
Decision Date14 January 1992

Page 1147

591 So.2d 1147
17 Fla. L. Weekly D245
Alejandro VIQUEIRA, Petitioner,
v.
Richard D. ROTH, Sheriff of Monroe County, Respondent.
No. 91-2698.
District Court of Appeal of Florida,
Third District.
Jan. 14, 1992.

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.

Page 1148

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...

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19 practice notes
  • Trowell v. State, No. 95-3082
    • 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, No. 97-2002
    • United States
    • Court of Appeal of Florida (US)
    • September 16, 1998
    ...District Court of Appeal, First District, 569 So.2d 439, 441 (Fla.1990); State v. 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 prepared and appellate counsel to review it, to determine if there is a......
  • Gonzalez v. Singletary, No. 98-444
    • United States
    • Court of Appeal of Florida (US)
    • July 1, 1998
    ...order 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 On the merits, however, we concur with the trial court that the motion was time-barred. Defendant argues that he could no......
  • Short v. State, No. 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." V......
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19 cases
  • Trowell v. State, No. 95-3082
    • 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, No. 97-2002
    • United States
    • Court of Appeal of Florida (US)
    • September 16, 1998
    ...District Court of Appeal, First District, 569 So.2d 439, 441 (Fla.1990); State v. 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 prepared and appellate counsel to review it, to determine if there is a......
  • Gonzalez v. Singletary, No. 98-444
    • United States
    • Court of Appeal of Florida (US)
    • July 1, 1998
    ...order 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 On the merits, however, we concur with the trial court that the motion was time-barred. Defendant argues that he could no......
  • Short v. State, No. 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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