Walker v. State, No. 99-948.

CourtCourt of Appeal of Florida (US)
Writing for the CourtCOPE, J.
Citation742 So.2d 342
PartiesVictoria D. WALKER, Petitioner, v. STATE of Florida, Respondent.
Docket NumberNo. 99-948.
Decision Date04 August 1999

742 So.2d 342

Victoria D. WALKER, Petitioner,
v.
STATE of Florida, Respondent

No. 99-948.

District Court of Appeal of Florida, Third District.

August 4, 1999.


Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, Simone P. Firley, Assistant Attorney General, for appellee.

Before COPE, LEVY and GODERICH, JJ.

On Rehearing Granted

COPE, J.

On the court's own motion, the court withdraws the opinion dated May 19, 1999, and substitutes the following opinion.

Vontoria Devon Walker filed a petition for belated appeal of multiple criminal convictions entered on a plea of guilty. In the plea colloquy, defendant-appellant Walker expressly waived the right to appeal. Defendant asserts that after sentencing, he asked his attorney to appeal and counsel informed him that because of the plea, he had given up his right to appeal the judgment and sentence. Consequently no appeal was filed.

Defendant filed a petition in this court for belated appeal. This court initially denied the petition by opinion dated May 19, 1999. Eight days later, the Florida Supreme Court announced State v. Trowell, 739 So.2d 77 (Fla.1999), which held that:

[T]he appellate court should grant a petition seeking a belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so. If the State raises a good faith basis to dispute the defendant's claims through affidavit or specific contrary allegations, the appellate court may order an evidentiary hearing in the trial court to determine the limited dispute issues of fact.

Id. at 78 (footnote and citations omitted).1 This court ordered rehearing in light of

742 So.2d 343
Trowell and appointed the public defender to represent the defendant

The defendant's sworn petition asserts that after his sentencing, he asked his privately retained counsel to file a notice of appeal. He further states that counsel "told me that because I had entered into a plea agreement with the State, I had given up my right to appeal my judgment and sentence."

This court directed the State to contact defendant's former trial counsel to determine whether there was a disputed issue of fact regarding the request for an appeal. Defense counsel responded that he had no independent recollection one way or the other, but stated that when a client requests an appeal after a guilty plea his normal...

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14 practice notes
  • Solomon v. Dickison, No. 1D04-5700.
    • United States
    • United States State Supreme Court of Florida
    • 30 Noviembre 2005
    ...present recollection." A failure to remember, however, does not rebut clearly set-out assertions, as here. See, e.g., Walker v. State, 742 So.2d 342 (Fla. 3d DCA Gaton, 745 So.2d at 511 & 512. Accordingly, the Court granted the writ of certiorari and quashed the trial court's order denying ......
  • Solomon v. Dickison, Case No. 1D04-5700 (FL 10/6/2005), Case No. 1D04-5700.
    • United States
    • Florida Supreme Court
    • 6 Octubre 2005
    ...present recollection." A failure to remember, however, does not rebut clearly set-out assertions, as here. See, e.g., Walker v. State, 742 So. 2d 342 (Fla. 3d DCA Gaton, 745 So. 2d at 511 & 512. Accordingly, the Court granted the writ of certiorari and quashed the trial court's order denyin......
  • Gaton v. Health Coalition, Inc., No. 99-1315.
    • United States
    • Florida District Court of Appeals
    • 24 Noviembre 1999
    ...A failure to remember, however, does not 745 So.2d 512 rebut clearly set-out assertions, as here. See, e.g., Walker v. State, 742 So.2d 342 (Fla. 3d DCA 1999) (belated appeal granted to defendant where defense counsel did not recall whether defendant had asked him to file an appeal); Allsta......
  • Hastings v. State, 5D22-0076
    • United States
    • Court of Appeal of Florida (US)
    • 18 Marzo 2022
    ...period, such that counsel would have recalled a request from Petitioner to appeal. As a result, this case is not like Walker v. State, 742 So.2d 342, 343 (Fla. 3d DCA 1999), where counsel "had no independent recollection one way or the other." This case is likewise distinguishable from Kell......
  • Request a trial to view additional results
14 cases
  • Solomon v. Dickison, No. 1D04-5700.
    • United States
    • United States State Supreme Court of Florida
    • 30 Noviembre 2005
    ...present recollection." A failure to remember, however, does not rebut clearly set-out assertions, as here. See, e.g., Walker v. State, 742 So.2d 342 (Fla. 3d DCA Gaton, 745 So.2d at 511 & 512. Accordingly, the Court granted the writ of certiorari and quashed the trial court's order denying ......
  • Solomon v. Dickison, Case No. 1D04-5700 (FL 10/6/2005), Case No. 1D04-5700.
    • United States
    • Florida Supreme Court
    • 6 Octubre 2005
    ...present recollection." A failure to remember, however, does not rebut clearly set-out assertions, as here. See, e.g., Walker v. State, 742 So. 2d 342 (Fla. 3d DCA Gaton, 745 So. 2d at 511 & 512. Accordingly, the Court granted the writ of certiorari and quashed the trial court's order denyin......
  • Gaton v. Health Coalition, Inc., No. 99-1315.
    • United States
    • Florida District Court of Appeals
    • 24 Noviembre 1999
    ...A failure to remember, however, does not 745 So.2d 512 rebut clearly set-out assertions, as here. See, e.g., Walker v. State, 742 So.2d 342 (Fla. 3d DCA 1999) (belated appeal granted to defendant where defense counsel did not recall whether defendant had asked him to file an appeal); Allsta......
  • Hastings v. State, 5D22-0076
    • United States
    • Court of Appeal of Florida (US)
    • 18 Marzo 2022
    ...period, such that counsel would have recalled a request from Petitioner to appeal. As a result, this case is not like Walker v. State, 742 So.2d 342, 343 (Fla. 3d DCA 1999), where counsel "had no independent recollection one way or the other." This case is likewise distinguishable from Kell......
  • Request a trial to view additional results

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