Vitiello v. StateVitiello v. State
The appellant was tried and found guilty of thе crime of robbery by a jury in the Criminal Court of Record of Dade County. He was adjudicated guilty and sentenced to thirty years in the State Prison. He has appealed and has presented two points. They are:
(1) The appellant was denied in the trial court his constitutional right to secure counsel of his own choice.
(2) There was no jurisdiction in the trial court to try defendant for an infamous crime upon an information rather than an indictment by a grand jury.
Mr. Sheldon Dubler, attorney at law, has been permitted to appear for the purpose of filing a brief as amicus curiae, upon the ground that he had been discharged as attorney for appellant, indirectly and without notice from his client and if the brief were not authorized by order of the court, the matters therein might be deemed abandoned. This brief presented eight points upon appeal:
(1) The State wholly failed to prove the corpus delicti.
(2) The State failed to prove ownership of the property alleged to have been taken.
(3) The State failed to establish an uninterrupted chain of custody of the property alleged to have been taken.
(4) The verdict of the jury was influenced by misconduct of the State Attorney.
(5) The trial court erred in entering judgment and sentence because of the many errors during the trial.
(6) The court erred in denying a continuance of the trial.
(7) The assignment of counsel “unacceptable” to the defendant does not comply with the provisions of due process.
(8) The sentence was excessive.
On May 23, 1963, an information was filed by the State Attorney, charging the appellant, in company with two others, with the crime of robbery. This information was quashed and a second information was filed June 11th. On June 18th the appellant was arraigned in оpen court and pled “not guilty” to the charge. At his arraignment the appellant was represented by counsel of his own choice, Mr. Barry L. Garber.
On July 9th, Mr. Garber withdrew as appellant‘s attorney. The appellant had been free on a surety appearance bond up until this time. On this date the bond was revoked and the appellant was remanded to jail to await trial. On July 12, when the case was called to set a trial date, appellant was represented in court by Mr. Max Engel, who withdrew a waiver of jury trial which had been previously made by the appellant. The case was set for trial on July 18th. The appellant was not brought into the courtroom on this occasion. He had previously retained Mr. Engel to bring a petition for habeas corpus and obviously Mr. Engel thought he was to handle the trial. Subsequently, Mr. Engel visited the appellant in jail on three ossasions in order to obtain the facts of the defense, but the defendant failed or refused to discuss his defense with Mr. Engel.
At the beginning of the trial the appellant made the following statement:
“FRANK VITIELLO: My name is Frank Michael Vitiello. On July 12, 1963, I was supposed to appear before the Court to choose an attorney of my own choice. I was denied this right. For some reason someone claims that Mr. Engel is my lawyer. He is not my lawyer. I did not hire him as my lawyer. I gave Mr. Engel $150.00 to file two writs of habeas corpus in the Circuit Court. I did not give him no retainer. I did not discuss this here case with any attorney. I have been denied the right to legal counsel under the Constitution.”
* * * * * *
“FRANK VITIELLO: Like I said before, I made this statement in the courtroom. I was supposed to appear before the Court to choose my own attorney. I did not choose an attorney. I was supposed to aрpear before the Court on July the 12th to pick the attorney and to have a hearing on my probation. Mr. Williams said that I can pick my attorney on that day. I never entered the courtroom, your Honor. I never — I didn‘t have no counsel. All I simply done was hire Mr. Engel to file two writs for me. He was not my lawyer.
“I was under the impression to come to the courtroom today to pick an attorney for myself. I did not pick an attorney. I was supposed to come to the Court on July 12th to pick my оwn counsel of my own choice. I‘m twenty-eight years old. I‘m not a minor. I did not choose Mr. Engel as my attorney. I have no counsel. I have no defense for this here case.
“THE COURT: It appears to the Court that the defendant is deliberately planning tо keep from going to trial. The motion for continuance will be denied.
“MR. ENGEL: Judge, may I have leave to withdraw based on what the —
“THE COURT: No, sir, I can‘t grant you that privilege.”
In view of these facts, there can be no question but that the trial court‘s denial of appellant‘s motion for continuance was entirely proper since it was apparent that
In Maistrosky v. Harvey, Fla.App. 1961, 133 So.2d 103, the appellate court was called upon to review an order of the trial court denying a motion for continuance of the trial upon the ground that a particular attorney who had handled a previous trial of the cause was not available on that date. The appellate court held that no abuse of discretion was shown because there was nо showing that other fully competent professional service was unavailable.
The principle is applicable here although the alleged basis for appellant‘s actions is different. Here the appellant failed to sеcure counsel and sought to delay his trial by the expedient of waiting until he was in court to announce the discharge of his previously employed counsel and seek then to secure a continuance until he had selected a new one.
A great deal of publicity has been given to the right to counsel at trial of those unfortunate defendants who are unable to secure legal representation. The legislature of this State has attempted to provide adequаte counsel for those who are insolvent and thereby unable to secure legal representation by the enactment of a public defender statute.
In our view, this appellant does not bring himself within either of these categories. Upon the other hand, when he discharged one attorney and failed to seek another, the court required an attorney, whom the defendant had selected for a habeas corpus proceeding, to proceed with the representation. There is no suggestion in the record that his legal representation was anything less than the best.
To hold that the trial judge was required to continue the trial under the circumstances of this record would be in our opinion a holding that defendant could at any time stymie the processes of the law until he saw fit to proceed.
Appellant‘s second point urges that bеcause robbery is an “infamous crime” he may not be prosecuted under an information filed by the State Attorney because of the first clause of the Fifth Amendment to the Constitution of the United States. This clause has been held not to apply tо prosecution for crimes in the state courts. Sawyer v. State, 94 Fla. 60, 113 So. 736, 740, and cases cited therein.
The amicus curiae in point one of his brief argues the sufficiency of the evidence to support the jury verdict. The only reference to proof of the corpus delicti is his contеntion that the court erred in allowing the State on re-direct examination to have the victim identify the property taken from him. A review of the record reveals that all the elements of the crime were established. See Bargesser v. State, 95 Fla. 401, 116 So. 11. As to proof of the corpus delicti, see Harper v. State, Fla.App. 1962, 141 So.2d 606.
The secоnd and third points of amicus curiae are not supported by the record.
The fourth point charges misconduct on the part of the State Attorney. In
“POINT NO. 4:
“That the verdict оf the jury was decided by means other than a fair expresssion on the part of the jurors by reason of the misconduct on the part of the State Attorney, which misconduct was prejudicial to the defendant in the following respects: (a) That thе State would recall the alleged victim as a witness to testify as to the identity of the property that was `seized;’ and (b) in introducing testimony of a State witness that a person at the scene of the alleged robbery was hospitalized months after the date of the alleged robbery, without tieing-in such hospitalization as steming from or resulting from the alleged, robbery, which testimony was inflammatory and prejudicial.”
It is apparent that part “a” of point 4 is a re-argument of matters contained in point 1. The part of the point designated “b” does not present error because the appellant first introduced the question of the witness’ physical condition after the alleged robbery. Accordingly, the State was entitled to pursue the matter further on cross-examination. See Coco v. State, Fla. 1953, 62 So.2d 892.
Under his fifth point, the amicus curiae attempts to argue 23 assignments of error going to nine different subjects. Such a point violates
The substance of amicus curiae‘s points 6 and 7 have been discussed under appellant‘s point one. The last contention to be considered is that the sentence was excessive. It is argued that bеcause one of the participants in this crime received a lesser sentence than that received by appellant, this Court should reduce the legal sentence imposed.
The appellant, together with his two cohorts, armed with guns, invaded a private residence at night. They bound and gagged one of the residents of the private home. The defendants held the victims prisoner by force of arms in their own home. The Florida Statute denouncing the crime of robbery prоvides a penalty by imprisonment in the State prison for life or for any lesser term of years at the discretion of the court. This, coupled with the fact that there was a pretrial investigation which revealed other crimes committed by the appellant, completely destroys appellant‘s contention under this point.
Affirmed.