JAMES LEE LEGGETT, PETITIONER,
v.
LOUIE L. WAINWRIGHT, RESPONDENT
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Leggett seeks belated appellate review of his conviction for assault with intent to commit murder under Hollingshead v. Wainwright, which allows review when a defendant's desire to appeal was frustrated by state action. The court denies the petition because Leggett never timely communicated his desire to appeal to his counsel or any state official.
Leggett is not entitled to belated appellate review. A petition for belated appeal under Hollingshead must allege that the defendant timely made known his desire to appeal to a state functionary. Absent such a timely request, counsel has no obligation to pursue appellate remedies.
[1] A person seeking belated appellate review based on frustrated appeal rights must allege that their desire to appeal was communicated to counsel or another state functiona…
[2] Counsel has no obligation to pursue appellate remedies in the absence of a client's request to appeal a conviction.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In absence of a request that a conviction be appealed, counsel is under no obligation to pursue appellate remedies.”
Establishes the fundamental principle that counsel cannot be required to appeal without client request
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Join FLexlaw to unlock all legal intelligenceLeggett was convicted and sentenced pursuant to his guilty plea to assault with intent to commit murder. He subsequently sought belated appellate revi…
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SPECTOR, Acting Chief Judge.
Petitioner seeks a belated appellate review of his judgment of conviction and sentence entered pursuant to his plea of guilty to assault with intent to commit murder. The relief is sought pursuant to Hollingshead v. Wainwright, 194 So. 2d 577 (Fla.1967), and like cases which provide for belated full appellate review when it appears that a person’s desire to appeal a conviction was frustrated by state action.
The petitioner in the case at bar does not allege that his desire to appeal was communicated to his counsel or any other state functionary. In absence of a request that a conviction be appealed, counsel is under no obligation to pursue appellate remedies. Indeed, it is doubtful that counsel is even authorized to take an appeal unless his client has asked him to do so.
Not all convicted persons desire to appeal. Some of them realize that their acts were wrong and are willing to take their medicine when they get caught and convicted. Others take to quibbling and sniveling until they convince themselves that being deprived of a colored television set by prison authorities is a greater injustice than the murder or robbery they themselves have committed.
And, perhaps it’s no wonder they feel that way, considering all the encouragement they get from those who consider punishment worse than the crime.
It is incumbent upon those desiring an appeal to say so in a timely fashion. When that desire is timely made known, no state action will be permitted to frustrate the desire to appeal. Where a petition for belated appeal under Hollingshead fails to allege [to be supported by proof later] that the defendant timely made known his desire to appeal to a state functionary, that petition will be denied.
The petition in the case at bar is fatally defective in this regard and is accordingly denied.
BOYER, J., concurs.
McCORD, J., specially concurs.
McCORD, Judge
(concurring specially).
I concur in the judgment denying the petition. It does not present a case for appellate review under Hollingshead v. Wainwright, supra.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tobler v. State, 350 So. 2d 555 (Fla. 1st DCA 1977)…her counsel’s duty is considered as [*556] within the terms of his original appointment or simply as a matter of the defendant’s reasonable expectation of the Public Defender as a State officer and Tobler’s former counsel. See Leggett v. Wainwright, 297 So. 2d 605 (Fla. 1st DCA 1974), app. dism., 308 So. 2d 115 (Fla.1975); Thompson v. Dilley, 275 So. 2d 234 (Fla.1973). To remedy the loss of a timely appeal from the judgments and sentences by which Tobler is now confined, we will consider the present appeal a…
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Haines v. State, 297 So. 2d 604 (Fla. 1st DCA 1974)…to appeal has not been frustrated by State action but instead by her own inaction. (See Baggett v. Wainwright, Sup.Ct.Fla.1970, 229 So. 2d 239 and Thompson v. Dilley, Sup.Ct.Fla. 1973, 275 So. 2d 234). In Leggett v. Wainwright, Fla.App. (1st) 1974, 297 So. 2d 605, opinion filed June 25, 1974, Case No. W-50, this Court said: “It is incumbent upon those desiring an appeal to say so in a timely fashion. When that desire is timely made known, no state action will be permitted to frustrate the desire to appeal.…
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Leggett v. State, 308 So. 2d 115 (Fla. 1975)…Cause dismissed ex mero motu. 297 So. 2d 605. ADKINS, C. J., and ROBERTS, Mc-CAIN, OVERTON and ENGLAND, JJ., concur.…
Authorities Cited
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)