Farmer v. StateFarmer v. State
This is an appeаl from the trial court‘s denial of appellant‘s motion for post-convictiоn relief which sought a belated review by the trial judge of the sufficiency of the evidence on the grounds that his privately retained counsel had failed to file a motion for new trial following appellant‘s conviction for murder in the first degree. We affirm.
Following appellant‘s conviction, he appealed to this court challenging the sufficiency of the evidence. This court examined the evidenсe and found it sufficient to sustain the conviction. However, appellant is claiming he lost the “unique” right to have the same judge who presided over his trial review the suffiсiency of the evidence.
In this appeаl the appellant claims that he is “not really” claiming incompetency оf counsel but rather deprivation of his constitutional right to counsel. In State v. Barber, 301 So.2d 7 (Fla. 1974), the Supremе Court of Florida treated a similar claim involving the failure to file a motion for nеw trial as an issue involving the competency of counsel. Barber involved appоinted counsel. If we accept the distinction offered by appellant, thеn if counsel was not incompetent, and thus not responsible for the failure to filе the motion for new trial, the only other explanation is that appellant himself was responsible and that he deprived himself of counsel.1 We thus see no othеr recourse but to treat appellant‘s claim as involving the competеncy of privately retained counsel.
In Cappetta v. Wainwright, 203 So.2d 609 (Fla. 1967) the Florida Supreme Court stated that inadequacy of privately retained counsel was not a valid basis for post-сonviction relief. Cappetta and other Florida decisions were cited by the federal court in U.S. ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir.1976) for the same proposition:
In an uninterrupted line of cases Florida has steadfastly refused to recоgnize incompetency of privately retained counsel as a valid basis for post-conviction relief. The rule appears well entrenched in Florida‘s jurisprudence, and we see no indication that a Florida appellate court would be inclined to deviate from this well worn path.
Under these holdings, the aрpellant is not entitled to relief.
However, the appellant contends the Florida decisions are incorrect, and that by not having a motion for new trial filed in his behalf, his constitutional rights to counsel and due process of law have beеn violated. In Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir.1974) it was held that in order to establish a claim of incompetency of private counsel, the defendant must prove that his trial was fundamentally unfair or thаt counsel‘s incompetency was so apparent that a reasonably attentive state official should have interceded to take corrective action. Even under this federal standard, we would be forced to affirm the trial сourt‘s decision since appellant‘s allegations and proof fall far shоrt of the required showing.
Accordingly, the order of the trial court is affirmed.
LETTS, J., and JOHNSON, TOM, Associate Judge, concur.