Brody v. Wainwright

CARLTON, Justice:

Petitioner filed in this Court a petition for writ of habeas corpus in which he complained about alleged infirmities supposedly tainting three separate convictions. One contention stood above the rest as requiring further consideration, namely, if he had been denied an appeal from a particular Rule 1.850, 33 F.S.A. denial because the Clerk of Circuit Court, Walton County, had failed to file and forward petitioner’s notice of appeal. The denial was handed down on July 23, 1969.

A letter of inquiry regarding this question was directed to the Circuit Court, but the answer was unsatisfactory, thus the State was ordered to file a return limited to this single issue. The return stated that the notice of appeal had been filed on August 26, 1969, but it was admitted that the notice had not been forwarded.

The State is correct in pointing out, however, that the notice was filed too late, the last timely day being August 22, 1969. Petitioner was on notice that a filing deadline existed and on August 4, 1969, he wrote to the Clerk of the Circuit Court inquiring about filing times. The Clerk advised petitioner to seek such information from the Public Defender who at that time was still on record as being petitioner’s counsel. Petitioner does not allege that he sought this information from the Public Defender, or that any answer from that official came too late for the perfecting of an appeal.

It being apparent that petitioner’s tardiness in filing was not the result of any State action, the writ heretofore issued must be discharged as improvidently issued.

It is so ordered.

ERVIN, C. J., and ROBERTS, ADKINS and BOYD, JJ., concur.