Xiques v. Dugger, 89-03541
| Decision Date | 20 April 1990 |
| Docket Number | No. 89-03541,89-03541 |
| Citation | 571 So.2d 3 |
| Parties | 15 Fla. L. Weekly D1071 John XIQUES, Petitioner, v. Richard L. DUGGER, Respondent. |
| Court | Florida District Court of Appeals |
John Xiques, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Brenda S. Taylor, Asst. Atty. Gen., Tampa, for respondent.
John Xiques petitions this court for a writ of habeas corpus. He seeks belated appellate review of his 1982 conviction and sentence for escape. We deny the petition.
Initially, Xiques alleges that the trial court, at the time of sentencing, "never advised him of his right to appeal." See Fla.R.Crim.P. 3.670. However, this oversight, even if factually correct, would appear to be immaterial in light of Xiques's additional claim that trial counsel made "a verbally implied statement" that he would file a timely appeal after Xiques "did make known to the attorney that he did wish to appeal his conviction." The failure to appeal a conviction, once a timely request has been made, generally constitutes ineffective assistance of counsel remediable by a habeas corpus action in the appellate court. State v. Meyer, 430 So.2d 440 (Fla.1983). When presented with a facially sufficient petition for belated appellate review, this court follows the procedure outlined in Bridges v. Dugger, 518 So.2d 298, 299 n. 2 (Fla. 2d DCA 1987).
Xiques's petition, however, poses additional problems. Primarily, as admitted by the petitioner himself, this is not the first time his claim of ineffective counsel has been presented. On June 9, 1989, this court denied habeas corpus relief in a prior proceeding involving the same conviction. Xiques v. Dugger, 545 So.2d 877 (Fla. 2d DCA 1989) (Table). In that petition Xiques alleged only that he "never had an appeal," that trial counsel "withdrew from the case and told [Xiques] he did not have a [sic ] appeal," and that counsel "failed to file a notice of appeal." Thus the "overt act or omission" of counsel, i.e., the failure to honor a timely request for an appeal, was not sufficiently detailed. Knight v. State, 394 So.2d 997 (Fla.1981); Bridges v. Dugger, supra. A successive petition regarding ineffective appellate counsel, much like a successive motion under Florida Rule of Criminal Procedure 3.850, may be summarily denied. Francois v. Wainwright, 470 So.2d 685 (Fla.1985).
An additional potential problem is the fact that Xiques has waited nearly eight years to furnish this court with a facially sufficient petition, and apparently did so only after prompting by the federal district court. Had Xiques claimed ineffective assistance of trial counsel, he would be foreclosed under the two-year limitations period contained in rule 3.850. Analogously, were this an action for legal malpractice, the statute of limitations would have expired. §...
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Graham v. Sec'y, DOC
...and 2) that the State was prejudiced by the resulting delay. See McCray v. State, 699 So.2d 1366 (Fla. 1997); see also Xiques v. Dugger, 571 So.2d 3 (Fla. 2d DCA 1990). Laches has been applied to postconviction proceedings when "it is obvious that the state has been manifestly prejudiced an......
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Marshall v. State
...successive rule 9.141 habeas petitions alleging the exact same issues as previously adjudicated are unauthorized. Xiques v. Dugger, 571 So.2d 3, 4 (Fla. 2d DCA 1990) ("A successive petition regarding ineffective appellate counsel, much like a successive motion under Florida Rule of Criminal......
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McCray v. State
...been prejudiced in responding to the claim." Anderson v. Singletary, 688 So.2d 462, 463 (Fla. 4th DCA 1997). See also Xiques v. Dugger, 571 So.2d 3 (Fla. 2d DCA 1990); Smith v. Wainwright, 425 So.2d 618 (Fla. 2d DCA 1982); Remp v. State, 248 So.2d 677 (Fla. 1st DCA 1970). Moreover, the doct......
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Brown v. State, 98-687
...Singletary, 688 So.2d 462 (Fla. 4th DCA 1997) (laches applied where petition was filed 15 years after appeal concluded); Xiques v. Dugger, 571 So.2d 3 (Fla. 2d DCA 1990) (second motion properly denied as successive, but laches also may apply for failure to seek relief until 8 years after co......