In the criminal realm, a conviction of guilt is almost never the end of the story or the resolution of the case. More often than not, an appeal is taken, challenging evidence that was rightfully or wrongfully excluded (or included), or other judicial acts that erroneously occurred during the trial. Importantly, in Florida, the right to appellate review in a criminal case is a Constitutional right of every Defendant. See Amendments to the Fla. R. of App. P., 696 So. 2d 1103 (Fla. 1996) (explaining that section four, subsection ‘b’ of the Constitution grants a substantive right to appellate review in criminal cases, subject to reasonable conditions, which do not thwart the litigants legitimate right to appeal).
The Rules of Appellate Procedure provide a strict time limitation, within which the appeal must be taken. See Fla. R. App. P. 9.140(b)(3). However, if that deadline has expired, in certain circumstances, the Defendant may file a petition for belated appeal. See Fla. R. App. P. 9.141(c). Under rule 9.141(c) of the Appellate Rules of Procedure the Defendant may petition for belated appeal within two years after the “time for filing the notice of appeal from final order” or within four years of the same, if the motion alleges that there are special circumstances for failure to file within the two year limitation. Id. The rule proscribes that in “no case” shall a petition be filed after four years from the rendition of the final order. Id.
So what about the Defendant who becomes aware of his appellate rights after the four year time limitation for belated appeal has passed? Are his or her rights less important than those who have discovered that they were wronged prior to the expiration of that strict time limitation? Because the right to appellate review is Constitutional, there are a line of cases that suggest there may be a right to file a Writ of Habeas Corpus, notwithstanding the expiration of the four year limitation. In State ex rel. Ervin v. State, the court denied a late petition for belated appeal which was filed only a few days after the expiration of the time limitation. 160 So. 2d 518, 519 (Fla.1984). The court explained, “[w]e have consistently held that the timely filing of the notice of appeal is a jurisdictional prerequisite to an appellate court’s power to act. One who has been convicted in a trial court is entitled to have his conviction reviewed.
Nevertheless, he is required to proceed in an orderly fashion in accordance with applicable statutes and rules. Although the law recognizes a right to appeal, this does not preclude the State from prescribing reasonable prerequisites to the exercise of the right. Customarily a time limitation is placed on the right to appeal. . . . This is an absolute essential jurisdictional requirement. If the requirement is not met the appellate court simply has no jurisdiction- no power – to act.” Id. at 520. Having said that, the Court granted the Defendant an opportunity for relief and review, notwithstanding his failure to file timely notice of appeal explaining, “[i]n view of the extremely unusual circumstances and the potential deprivation of due process inherent in the factual situation presented to us, our decision shall be without prejudice to the prisoner  to apply to the respondent court for relief by way of habeas corpus.” Id. See also Chaudoin v. State, 383 So. 2d 645 (Fla. 5th DCA 1980) (explaining that counsel’s failure to file timely notice of appeal, after a direct request from his client, warranted habeas corpus relief and a belated appeal); Burnside v. State, 720 So. 2d 269 (Fla.5th DCA 1998) (granting petition for habeas corpus and allowing thirty days to file an appeal where Defendant’s counsel failed to timely file an appeal). It seems that the real point of inquiry is whether the incarcerated Defendant will be deprived due process if his appeal is disallowed. The long and short is: advise your client of the strict time limitations for filing an appeal, the pros and cons of taking an appeal, and abide by those limitations. This is not only good practice, but it could prevent your client from a heavy burden later down the road.