STATE OF FLORIDA

COUNTY OF DADE

I, Beth C. Weitzner, being of full age and duly sworn, do hereby depose and state the following:

1. My name is Beth C. Weitzner. I am an attorney and the Chief of the Appellate Division for the Public Defender's Office of Florida, Eleventh Judicial Circuit. My business address is 1320 N.W. 14^th Street, Miami, Florida 33125.

2. I am making this affidavit in conjunction with the federal habeas action, styled Francisco Fuster-Escalona vs. Harry K. Singletary, No. 97-1369-Civ-LENARD, and for all other purposes allowed by law.

3. I have worked as an attorney in the Public Defender's Appellate Division of the Eleventh Judicial Circuit for over twenty years. I have been Chief of the Appellate Division for approximately fifteen years.

4. As a result of serious understaffing during the mid-1980's and early 1990's, our office was unable to handle the number of direct appeals we were responsible for filing. In practical terms, this meant that we were frequently unable to prepare briefs on behalf of our clients in a timely fashion in any way that comported with our constitutional obligation to provide meaningful representation on direct appeal.

5. In recognition of this problem, our office reached an accommodation with the Court of Appeals for the Third District. If we were unable to file a brief within the period of time allotted by the Rules of Appellate Procedure plus reasonable continuances, the Court would dismiss the appeal. However, no mandate would issue on the basis of this dismissal. Instead, at such time as the direct appeal brief was actually finished, our office could file a Motion for Reinstatement along with the brief and the Third District would reinstate the direct appeal. This was routinely done.

6. The concern which led to the implementation of this procedure, of course, was that criminal defendants are entitled as a matter of constitutional right to a direct appeal. They are also constitutionally entitled to representation of counsel on direct appeal. This right applies no less to indigents as it does to those defendants who can afford private legal services.

7. The funding and staffing of our office was the result of legislative decision-making. Thus, our inability to provide meaningful representation to indigent clients was the result of state action. Accordingly, had the state courts refused to reinstate our clients' direct appeals, our clients' constitutional rights would have been abrogated.

8. Since Florida case law makes clear that the time period for filing a Rule 3.850 Motion for postconviction relief runs for two years following the issuance of the mandate on direct appeal, the courts of the Third District considered Rule 3.850 Motions to be timely filed if they were filed within two years of the mandate being issued on the reinstated appeal.

10. It is my understanding from talking with Mr. Fuster-Escalona's counsel that, in the case of Mr. Fuster-Escalona's Rule 3.850 Motion, the Florida courts ruled his claims to be untimely even though his Motion was filed within two years of the issuance of the mandate following the reinstated direct appeal. If that is, in fact, true, the Florida courts were not acting in accordance with firmly established or regularly followed practices in the Third District.

14. I would also note for the record that, had it been the established and regular practice for the courts in the Third District to refuse to hear Rule 3.850 claims filed more than two years from the date of the initial dismissal, the Public Defender's Office would have challenged such a practice. Moreover, our office would have considered it our obligation to notify our clients that they needed to undertake the filing of these postconviction motions, even without their direct appeals having yet been heard, so as not to lose this valuable avenue for challenging their convictions. We did not provide such a notification because the courts were not in the habit of dismissing the Rule 3.850 Motions for untimeliness unless two years had run after the reinstated direct appeal had been concluded.

I hereby state that the foregoing statements are true and accurate to the best of my knowledge, memory and belief.

Affiant says nothing further.

_________________________

Beth C. Weitzner,

Chief - Appellate Division

Office of the Public Defender

Eleventh Judicial Circuit

Dade County, Florida

Sworn to and subscribed before me, this ____ day of

_________, 1999.

_____________

Notary Public My Commission expires:

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