BOUCHETTE v. STATE (1998)

Bouchette petitions this court for the issuance of a writ of habeas corpus in order to obtain a belated appeal.   He alleges that after his conviction in a criminal case he moved to dismiss his defense attorney and represented himself at the sentencing.   He orally requested an appeal, but failed to file a timely notice of appeal.   Under the circumstances of this case, we think Bouchette was likely confused about how to perfect his appeal, and thus he is entitled to the remedy he seeks.

At the sentencing hearing, the trial judge told Bouchette that he had thirty days in which to appeal.   Thereafter, the court said if he decided to appeal and if he could not afford a lawyer for the appeal the court would appoint one to represent him.   Bouchette said:  “Yes, sir, I'd like to appeal this.”   The court replied, “All right.   The Public Defender will be appointed for the purposes of the appeal.   If the Clerk's office or the Public Defender's office would send that to me.”

So ended the discussion concerning the appeal.   From this it appears Bouchette could reasonably have concluded he need take no further action within thirty days to obtain his appeal;  i.e., file a notice of appeal.   The state is correct that even if the public defender had been appointed at sentencing, Bouchette should have filed his own notice of appeal since he represented himself at sentencing.   See Fla. R.Crim. P. 3.111(e) (It is trial counsel's duty to file the notice of appeal, if requested.)   However, under the circumstances of this case, a person uneducated in the law as Bouchette was, could reasonably have concluded that by immediately indicating his desire to appeal and having had the court instantly act on it by appointing the Public Defender, there was nothing more that he needed to do.

Petition for Writ of Habeas Corpus GRANTED.

Since Bouchette was appearing pro se at sentencing, it was his duty to file the notice of appeal.   Although the court appointed the public defender's office for purposes of appeal, the appellate public defender does not usually file the notice of appeal, unless requested to do so.   If a defendant is represented by counsel, it is counsel's responsibility to file a notice of appeal if requested to do so before withdrawing from the case.   See Fla. R.Crim. P. 3.111(e).   As petitioner was appearing pro se, he cannot attribute the failure to file a notice of appeal on ineffective assistance of trial counsel.   Petitioner was likely confused because the trial judge indicated that it was appointing the public defender's office for appeal.   However, that is one of the many risks inherent in pro se representation.   Although petitioner expressed to the judge his desire to appeal, it was not the judge's responsibility to file the notice of appeal.   Therefore, the failure to timely initiate an appeal cannot be attributed to state action or inaction.   Furthermore, how would the appellate public defender division even know that petitioner wanted them to file a notice of appeal?   Petitioner did not allege that he told the public defender's office that he wanted a notice of appeal filed on his behalf.

Bouchette's private attorney was allowed to withdraw before sentencing and it became Bouchette's responsibility to file the notice of appeal, or at least communicate to the public defender's office that he wanted them to file the notice of appeal.   The failure to file a notice of appeal was petitioner's own fault.

I cannot believe, as contended by the majority, that a defendant's “confusion” is a valid ground for a belated appeal.   Until now, some state action (by the court or counsel) depriving the petitioner of his right to appeal was required.   I do not believe that we should create a new and virtually unlimited basis for habeas corpus relief in these cases.   Lawyers sometimes lose a case because they are confused about the law or the facts;  that confusion is not a valid basis for the granting of a new trial or other relief.   The standard should not be any different for a layman who chooses to represent himself.

I would deny the petition.

W. SHARP, Judge.

ANTOON, J., concurs. COBB, J., dissents with opinion.