Opinion
No. 42977.
April 18, 1973.
Petition from the District Court of Appeal, Fourth District.
Charles W. Musgrove, West Palm Beach, for petitioner.
Robert L. Shevin, Atty. Gen., and Nelson E. Bailey, Asst. Atty. Gen., for respondent.
On this petition for writ of certiorari, we have for review an order of the District Court of Appeal, Fourth District, which conflicts with the decision of this Court in State v. Wooden, 246 So.2d 755 (Fla. 1971). We have jurisdiction over the cause pursuant to Fla. Const. Article V, § 3(b)(3), F.S.A.
By petition for writ of habeas corpus filed in the District Court of Appeal, Fourth District, petitioner sought delayed appellate review of his conviction, alleging denial of his right to appeal by state action. Essentially, petitioner asserted that he was convicted in the Criminal Court of Record of Palm Beach County of conspiracy to commit a felony and of robbery; judgment and sentence were imposed on September 24, 1971. He asserts that at the time of trial and for appeal purposes he was represented by appointed counsel. No motion for new trial was filed by appointed counsel, nor did counsel file notice of appeal in the district court. However, prior to his conviction, petitioner twice requested his counsel to appeal the decision of the trial court. The two letters requesting such action are made a part of the record below.
Finally, on November 4, 1971, petitioner filed his own notice of appeal in the district court; inasmuch as this appeal was untimely filed it was dismissed.
When petitioner subsequently filed the instant petition for writ of habeas corpus in the district court, alleging the matters above set forth, the petition was denied in a signed order. Petitioner now seeks conflict certiorari here. We find conflict and reverse.
In State v. Wooden, supra, this Court held that in light of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Baggett v. Wainwright, 229 So.2d 239 (Fla. 1969), appointed counsel is required to appeal a case whether or not it is meritorious in his view. Since it appears from the petition and exhibits filed below that petitioner has made a prima facie showing of frustrated appeal through state action, we hold that the district court erred in denying his petition for writ of habeas corpus without requiring a return by the State. Moreover, if, on the State's return, petitioner's recital of facts proves to be accurate, then petitioner will be entitled to delayed appellate review by the district court.
Accordingly, the order of the District Court of Appeal, Fourth District, is quashed and the cause remanded with directions that the district court require the State to respond and for such further action as may be required.
It is so ordered.
CARLTON, C.J., and ROBERTS, ERVIN and DEKLE, JJ., concur.