158 F.2d 614 (5th Cir. 1946), 11715, Mayo v. Wade

Docket Nº:11715.
Citation:158 F.2d 614
Party Name:MAYO, State Prison Custodian, v. WADE.
Case Date:November 22, 1946
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 614

158 F.2d 614 (5th Cir. 1946)

MAYO, State Prison Custodian,



No. 11715.

United States Court of Appeals, Fifth Circuit.

Nov. 22, 1946

J. Tom Watson, Atty. Gen., of Florida, and Reeves Bowen and Sumter Leitner, Assts. to Atty. Gen., of Florida, for appellant.

Eugene M. Baynes, of West Palm Beach, Fla., for appellee.

Page 615

Before SIBLEY, HUTCHESON, and WALLER, Circuit Judges.

WALLER, Circuit Judge.

Appellee was convicted in Palm Beach County, Florida, March 14, 1945, in the Criminal Court of Record, for the offense of breaking and entering, which was not a capital offense. On the next day he filed a petition in habeas corpus in the Circuit Court of the State of Florida having jurisdiction in Palm Beach County, alleging that he had been unable to employ counsel, and that the Criminal Court of Record denied his request for the Court to appoint counsel to represent him in his trial. The Circuit Court quashed the writ and remanded the Appellee to the custody of the Sheriff of Palm Beach County.

His appeal to the Supreme Court of Florida was, on motion of the Attorney General of the State of Florida, dismissed as frivolous. Having exhausted all available remedies in the state courts, Appellee, on May 10, 1946, filed a petition, with substantially the same allegations, for a writ of habeas corpus in the District Court of the United States for the Southern District of Florida, Jacksonville Division. He was allowed to proceed in forma pauperis and in due course a return to the writ was filed by Respondent. Testimony was taken and upon final hearing the Court below made the following finding:

'It appears that petitioner, at the time of his trial in the Criminal Court of Record of Palm Beach, Florida, was eighteen years old, and though not wholly a stranger to the Court Room, having been convicted of prior offenses, was still an inexperienced youth unfamiliar with Court procedure, and not capable of adequately representing himself. It is admitted by the Judge who presided at petitioner's trial on March 6, 1945 that petitioner in open Court, before trial commenced, requested said Judge to appoint counsel for him, but the request was denied and petitioner placed on trial without counsel.'

The Appellee had, in November, 1943, pleaded guilty in Jackson County, Florida, to a charge of burglary, and had served a portion of his sentence, from which he was on parole at the time of the alleged breaking and entering in Palm Beach County. He had completed the eighth grade in school. During the progress of the trial in the second case it appeared that Appellee: (a) Was advised by the trial Judge of his right to challenge jurors and excuse as many as six without any reason being given therefor; (b) was afforded an opportunity, which he accepted, to cross examine state witnesses; (c) took the stand and testified fully in his own behalf; (d) was offered the privilege of arguing his case to the jury but declined, as did the prosecuting attorney.

There were no complicated questions of law involved in the trial but only simple questions of fact.

Two others who were charged with the offense jointly with Wade pleaded guilty.

The Court below, after hearing the evidence, was of the opinion, and so held, that under Section 11 of the Declaration of Rights of the Florida Constitution 1 and certain Florida decisions 2 the refusal of the trial Court to appoint an attorney to defend Petitioner was a denial of due process under the laws of Florida, contrary to the Fourteenth Amendment to the Federal Constitution.

In undertaking to determine what the Florida law on the subject is we note that Sec. 909.21, Florida Statutes, 1941, 3 requires the appointment by the court of counsel to defend indigent persons only in capital cases. This statute makes it mandatory

Page 6...

To continue reading