State v. MooreState v. Moore
James K. Moore pled guilty to a charge of speeding,
No bills of exceptions were reserved, therefore, our review is limited to errors discoverable by a mere inspection of the record.
Defendant suggests that an inspection of the record before us on appeal will show that he was entitled to be represented by counsel, that he was not represented by counsel, that he was not advised of his right to counsel and that he did not waive this right. He contends that the thirty days’ suspended jail sentence is sufficient “actual deprivation of a person‘s liberty” to bring him within the ambit of the rule of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The court there stated:
“We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. [92 S.Ct. 2012.]
“Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
“The run of misdemeanors will not be affected by today‘s ruling. But in those that end up in the actual deprivation of a person‘s liberty, the accused will receive the benefit of `the guiding hand of counsel’ so necessary when one‘s liberty is in jeopardy.” 92 S.Ct. 2014. (Emphasis here and elsewhere supplied.)
The first question for our resolution is whether or not imposition of a sentence of imprisonment, which is then suspended, requires representation by counsel on the trial of the case. We are convinced that a sentence of imprisonment has been imposed in this case. The execution of the sentence has merely been suspended, either upon the conditions imposed by law, or upon those imposed by the court under authority of law.
“When the court suspends the imposition or execution of sentence and places a defendant on probation, it may impose any specific conditions reasonably related to his rehabilitation, including but not restricted to, any or all of the following:
“That the defendant shall:
(1) Meet his specified family responsibilities;
(2) Report to the probation officer as directed;
(3) Permit the probation officer to visit him at his home or elsewhere;
(4) Devote himself to an approved employment or occupation;
(5) Refrain from owning or possessing firearms or other dangerous weapons unless granted written permission by his probation officer;
(6) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;
(7) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; or
(8) Remain within the jurisdiction of the court and notify the court or the probation officer of any change in his address or his employment.”
Thus, it is readily apparent that a suspended sentence for a misdemeanor in and of itself may require custody when probation is invoked. The defendant in such a case is under the supervision of the department of probation and parole. His liberty may be curtailed strenuously under the conditions which may be imposed by authority of
Our understanding of Argersinger is that the accused should “receive the benefit of `the guiding hand of counsel’ so necessary when one‘s liberty is in jeopardy.” 92 S.Ct. 2014. The United States Supreme Court, a majority of the jurisdictions in this country and our own Court, have held under habeas corpus proceedings that “custody” and “liberty” include more than total physical custody or total physical deprivation of liberty. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); and Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). We hold that under the rule of Argersinger v. Hamlin, supra, counsel or waiver of counsel is required before one may be sentenced to imprisonment, whether the sentence is executed or suspended. We hold that either disposition is such a deprivation of a person‘s liberty that right of counsel attaches for the trial of the offense carrying such a penalty.
Having thus concluded that the defendant here was entitled to counsel or was required to be given the opportunity to waive counsel, we pass to the next contentions of the defendant which are that he was not represented by counsel, not advised of his right to counsel, and did not waive this right. He alleges that his case is controlled by State v. Coody, 275 So.2d 773 (La.1973), wherein we reversed a conviction and sentence, which carried 90 days imprisonment under a charge of operating a vehicle while intoxicated, because the defendant was not represented by counsel and had not been advised of his right to counsel under the record of the case. Coody was based on
“The minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant‘s right to court-appointed counsel.”
The facts of the Coody case distinguish it from the one at hand. In Coody, the totality of the record in regard to counsel or waiver of counsel was an entry on arraignment that the defendant was “present in court without counsel” and on trial date “the defendant [was] present in Court without counsel.” The arraignment of the defendant in the present case took place on April 17, 1973, at which time the following colloquy occurred:
“THE CLERK:
Will you give us your name and address?
THE DEFENDANT:
James K. Moore, 12242 Armstrong Drive, Baton Rouge, Louisiana.
THE CLERK: You are charged with speeding 60 in a 40 and driving while intoxicated.
How do you plead to the charge?
THE COURT:
If you have any doubt, what you should do is plead not guilty and consult an attorney. If you can‘t afford an attorney, let me know and I‘ll appoint one for you.
What is your plea?
THE DEFENDANT:
Not guilty.
THE COURT:
Let this matter be fixed for the next officers’ trial date. Let the record reflect that the defendant was advised to consult an attorney.”
Upon the trial of June 13, he appeared without counsel. He apparently had not requested appointed counsel and we assume this is because he was not indigent.1 On the date of the trial he was advised, along with all other defendants, that if their attorneys could not be present, a continuance would be granted. The defendant went to trial without counsel. The requirements of
We have inspected all of the pleadings and proceedings and find no reversible error.
The conviction, suspended jail sentence, and fine are affirmed.2
SANDERS, C. J., concurs in the decree.
MARCUS, J., concurs.
SUMMERS, J., concurs in result and assigns written reasons.
SUMMERS, Justice (concurring).
A sentence of imprisonment which is suspended is not an “actual deprivation of a person‘s liberty” as that phrase is used in Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L.Ed.2d 530 (1972). The rule of the Argersinger Case is applicable when “actual deprivation of a person‘s liberty” takes place. This means when he is incarcerated in fact, nothing more. Expressions of the court to the contrary are mere dicta to which I cannot subscribe. Accordingly I concur in the result only.