Smith v. State

FRANK D. UPCHURCH, Jr., Judge,

specially concurring.

While I concur in the opinion of the majority and with Judge Orfinger’s reasoning in Meyer v. State, 415 So.2d 70 (Fla. 5th DCA 1982), I submit that the term “state action” is a legal fiction. The court should consider the broader question, “Should a criminal defendant, whether represented by publicly appointed or privately retained counsel, be deprived of an opportunity to have his case reviewed after his attorney, through negligence, permits the appeal time to run?”

In civil cases, I have no problem with barring an appeal if not instituted…