125 So. 2d 99 | Fla. | 1960
By an original application for a writ of habeas corpus petitioner Jones seeks release from the State Prison where he is serving a term for larceny of an automobile.
We must decide whether Jones was denied due process of law account of the failure of the trial judge to appoint a lawyer to represent him at his arraignment when he pleaded guilty to the charge.
The petition impressed us as having prima facie merit. By opinion in Jones v. Cochran, Fla., 121 So.2d 657, we indicated concern over the allegation that petitioner was under seventeen at the time of his trial and, therefore, subject to the jurisdiction of the juvenile court, rather than the circuit court. We were also concerned over the alleged denial of due process because of failure of the trial judge to appoint counsel for the accused. We thereupon appointed Honorable Roger A. Barker, a circuit judge, as commissioner, to take testimony and make recommendations on the points of concern. Judge Barker appointed Kenneth Morton, a member of The Florida Bar to represent the petitioner in the proceedings before the Commissioner. By his report the Commissioner advises that Mr. Morton, at substantial personal expense in time and money, has represented the petitioner in a manner meriting the commendation of the Court. The record suggests that Judge Barker’s recommendation is well-grounded. We preface our opinion by adding our own commendation of Mr. Morton for conduct consistent with the best traditions of the profession.
The report of the Commissioner finds that the petitioner was seventeen years and six months old at the time he committed the offense involved. The record supports this finding. Consequently, our concern over the original trial jurisdiction of the circuit court is now allayed.
We proceed to consider the contention that the failure of the trial judge to appoint a lawyer to represent the accused impinges on his right to due process under the Fourteenth Amendment to the Constitution of the United States and Section 12, Florida Declaration of Rights, F.S.A. To arrive at a sound conclusion we must extract from the record the significant facts bearing on the contention.
Petitioner Jones as a seventeen year old boy left his home in Indiana a few months prior to the commission of the crime for
In addition to the points of concern indicated in our prior opinion, the Commissioner heard testimony on the subject of notice to petitioner’s parents as required by Section 932.38, Florida Statutes, F.S.A. The record supports the conclusion that the father of the petitioner was notified of the charge against him prior to the trial. The service of the notice was sufficient to meet the requirements of the cited statute and our decision in Snell v. Mayo, Fla., 84 So.2d 581.
When the petitioner was arraigned and pleaded guilty to the crime of theft of an automobile there was no record indication that he was represented by counsel. At the same time there is no indication that he requested the assistance of anyone or that he felt that the services of a lawyer would be helpful. We will, of course, indulge the presumption that the trial judge adequately guarded the fundamental rights of the accused in the absence of a showing to the contrary. We are here merely confronted with the problem of deciding whether under all of the circumstances reflected by the record, this petitioner has shown that he was denied due process because of failure of the trial judge to appoint a lawyer to represent him. The Commission concluded that he was. We must now review this conclusion.
It is unnecessary for us to expound on the Florida Rule regarding right to counsel in cases less than capital. By virtue of the Sixth Amendment to the United States Constitution, the defendant in criminal cases in the federal courts is always entitled to representation by counsel. This is not so in many of the state courts, including Florida. Since Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, assistance of counsel is an absolute essential of due process under the Fourteenth Amendment in all cases where capital punishment could result. In all other cases, however, the rule of the particular state will control unless it can be said that because of particular circumstances, the accused in a non-capital case has suffered a denial of due process because of lack of counsel. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Johnson v. Mayo, 158 Fla. 264, 28 So.2d 585; Cash v. Culver, Fla., 120 So.2d 590.
These annotations with supporting authorities stand positively for the proposition that there is no case in which failure of a state trial court to advise the accused of a right to counsel or to appoint counsel for him without other circumstances amounts to a denial of due process. In every case in which a conviction has been set aside the prisoner has proved, or was prepared to prove, that for want of benefit of counsel an ingrédient of unfairness actively operated in producing his confinement. These authorities point to the proposition that due process requires assistance of counsel where because of special circumstances or the inability of the accused understanding^ to waive counsel results in a denial of a fair trial.
The necessity for the appointment of counsel in order to meet Fourteenth Amendment requirements is influenced largely by the following factors: (1) the gravity of the offense, (2) the nature and complexity of the issue, (3) the age of the defendant, (4) his mental capacity, (5) background, including education and experience, (6) knowledge of law and procedure and, (7) the degree of protection given during the trial as appears from the conduct of the Court or prosecuting officials. 93 L.Ed. 149. No one of these factors alone is decisive. As pointed out in Betts v. Brady, supra, it is necessary to appraise the totality of the facts and decide whether the need for counsel is so great that the deprivation of such assistance produces a fundamental unfairness.
When we measure the instant record by the foregoing standards we are led to the conclusion that the conviction of this petitioner was not the product of an unfair trial or the denial of due process. Although admittedly, his intellectual level was not high the fact remains that he had at least reached the ninth grade in school. He had previously experienced minor brushes with the law and was not totally ignorant of court processes. The charge against him was relatively simple and easily understood. Even a small boy usually has sufficient intelligence to know when he steals someone’s property. The issues here were not at all complex. During the instant hearing and in his current application, the petitioner, now two years older and with the assistance of counsel, frankly admits that he stole the automobile as charged. There is no evidence whatever of overreaching, abuse or unfairness in the initial handling of the matter. We fail to find that the accused
The writ is discharged and the petitioner is remanded to custody.
It is so ordered.