Esters v. State

8 Citing cases

  1. Raney v. State

    986 So. 2d 468 (Ala. Crim. App. 2007)   Cited 1 times

    "There is no indication in the record on direct appeal that counsel ever with-drew his representation of Tolbert. Moreover, White does not dispute that neither he nor the trial court informed Tolbert that he had only 42 days from sentencing to timely file notice of appeal. At the conclusion of the Rule 32 hearing the circuit court, reflecting on a recent reversal resulting from its granting an out-of-time appeal, stated that the granting an out-of-time appeal `may not be something that this Court can do' but it would `look at that case [reversing the court] again.' (Vol. 3, p. 127). "In Esters v. State, 894 So.2d 755 (Ala.Crim.App. 2003), we analyzed the circuit court's denial of an out-of-time appeal by the following mandates of Rule 6.2, Ala. R.Crim. P.: "`"(b) Duty of Continuing Representation. Counsel representing a defendant at any stage shall continue to represent that defendant in all further proceedings in the trial court, including filing of notice of appeal, unless counsel withdraws in accordance with a limited contract of employment as described in Rule 6.2(a), or for other good cause as approved by the court.

  2. Tolbert v. State

    953 So. 2d 1269 (Ala. Crim. App. 2005)   Cited 1 times

    In Esters v. State, 894 So.2d 755 (Ala.Crim.App. 2003), we analyzed the circuit court's denial of an out-of-time appeal by the following mandates of Rule 6.2, Ala. R.Crim. P.: "'(b) Duty of Continuing Representation.

  3. Holderfield v. State (Ex parte Holderfield)

    255 So. 3d 743 (Ala. 2016)   Cited 5 times

    We note that Holt and Martinez were decided before this Court's decision in Hitt and that the order of the Court of Criminal Appeals in this case did not attempt to reconcile Holt and Martinez with Hitt or Dixon. See also Esters v. State, 894 So.2d 755, 758 n. 4 (Ala.Crim.App.2003) ("Caselaw appears to be in conflict in regard to the effect of Rule 24 on ... counsel's motion to reconsider Esters's sentences and Esters's pro se motion to vacate his sentences."). The Dixon court noted the conflict identified in Esters and stated that the better approach is to treat a motion to amend a sentence as a motion governed by Rule 24.

  4. Manning v. State

    2005 UT 61 (Utah 2005)   Cited 71 times
    Holding that “upon a defendant's motion, the trial or sentencing court may reinstate the time frame for filing a direct appeal where the defendant can prove, based on facts in the record or determined through additional evidentiary hearings, that he has been unconstitutionally deprived, through no fault of his own, of his right to appeal”

    For example, New York replaced its Callaway holding, on which we relied in Johnson, 635 P.2d at 38, with a rule of criminal procedure. See N.Y.Crim. Proc. Law § 460.30 (McKinney 1970) (extending the time for taking an appeal, "upon the improper conduct of a public servant or improper conduct, death, or disability of the defendant's attorney, or (b) inability of the defendant and his attorney to have communicated, in person or by mail, concerning whether an appeal should be taken, prior to the expiration of the time within which to take an appeal due to defendant's incarceration in an institution and through no lack of due diligence or fault of the attorney or defendant"); see also Esters v. State, 894 So.2d 755, 757 (Ala.Crim.App. 2003); State v. Rosales, 205 Ariz. 86, 66 P.3d 1263, 1267 (Ariz.Ct.App. 2003); Garrison v. State, 350 Md. 128, 711 A.2d 170, 175 (1998); State v. Meers, 267 Neb. 27, 671 N.W.2d 234, 236 (2003). ¶ 28

  5. State v. Ziegler

    159 So. 3d 96 (Ala. Crim. App. 2014)   Cited 2 times
    Holding that petitioner is "entitled to a new trial" because counsel were ineffective

    unless counsel withdraws in accordance with a limited contract of employment as described in Rule 6.2(a), or for other good cause as approved by the court.” In Esters v. State, 894 So.2d 755 (Ala.Crim.App.2003), the appellant was appointed counsel but subsequently retained a different attorney. This Court held that “[a]lthough counsel, retained by Esters's family, filed a motion to withdraw Esters's guilty pleas, both appointed trial counsel were still attorneys of record.

  6. Harvey v. State

    285 P.3d 295 (Alaska Ct. App. 2012)   Cited 6 times
    In Harvey, we declined to decide whether a criminal defense attorney has a duty to consult with a convicted client about the possibility of filing a direct appeal outside of these two contexts.

    See also United States v. Ruth, 768 F.Supp. 1428, 1435 (D.Kan.1991). For other cases where courts have applied the Flores–Ortega standard to privately retained counsel who informed their clients that they would not continue to represent them on appeal, see Raney v. State, 986 So.2d 468 (Ala.Crim.App.2007); Esters v. State, 894 So.2d 755 (Ala.Crim.App.2003); and Wallace v. State, 121 S.W.3d 652 (Tenn.2003); Cabinatan v. United States, unpublished, 2011 WL 255691, *5 (D.Haw.2011) (rejecting the contention that, because the defendant's trial attorney “was not retained or paid to prosecute an appeal, he therefore owed no duty to Cabinatan to file a notice of appeal.”); Richardson v. United States, 612 F.Supp.2d 709, 715–16 (N.D.W.Va.2009) (holding that trial counsel owes a criminal defendant a duty to file a notice of appeal, regardless of whether the attorney was retained for the appeal or not); Schaefer v. United States, unpublished, 2008 WL 6138029, *1, *3 (S.D.Ga.2008) (finding ineffective assistance of counsel when, following sentencing, the defendant expressed a desire to appeal and his retained counsel told him, “Don't drag me into it; you're on your own.”). We therefore conclude that Flores–Ortega governs the conduct of privately retained attorneys. And as we have already explained, the Flores–Ortega test was met in Harvey's case,

  7. Dixon v. State

    920 So. 2d 1122 (Ala. Crim. App. 2005)   Cited 7 times
    In Dixon v. State, 920 So.2d 1122, 1127 (Ala.Crim.App.2005), the Court of Criminal Appeals stated: "A motion to set aside or modify a sentence falls under the purview of Rule 24.4[, Ala. R.Crim. P.]."

    See Rule 24.4, Ala. R.Crim. P."). But see Esters v. State, 894 So.2d 755 n. 4 (Ala.Crim.App. 2003) ("Caselaw appears to be in conflict in regard to the effect of Rule 24 on appointed trial counsel's motion to reconsider Esters's sentences and Esters's pro se motion to vacate his sentences."). But cf. Holt v. State, 628 So.2d 1038 (Ala.Crim.App. 1993), and Martinez v. State, 602 So.2d 504 (Ala.Crim.App. 1992) (both holding that a motion to reconsider a sentence does not toll the time for appeal).

  8. State v. Hamlet

    913 So. 2d 493 (Ala. Crim. App. 2005)   Cited 18 times

    Even assuming Rudd had formally withdrawn, this behavior also falls well below the duty owed to petitioner. "In Esters v. State, 894 So.2d 755 (Ala.Crim.App. 2003), the Court recognized the continuing duty of appointed counsel even when replaced by new counsel. The Court began its analysis by citing to Ala.R.Crim.P. 6.2 for the basic principle that a defendant deserves continuity of representation through all critical stages, including trial.