Vitiello v. State
| Decision Date | 11 August 1964 |
| Docket Number | No. 63-537,63-537 |
| Citation | 167 So.2d 629 |
| Parties | Frank Michael VITIELLO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
J. Victor Africano, Hallandale, Fla., for appellant.
James W. Kynes, Jr., Atty. Gen., and Victor V. Andreevsky, Asst. Atty. Gen., for appellee.
Before BARKDULL, C. J., and HORTON and TILLMAN PEARSON, JJ.
The appellant was tried and found guilty of the 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 'unaceptable' to the defendant does not comply with the provisions of due process.
(8) The sentence was excessive.
It will be observed that the first point in appellant's brief and the seventh in the brief of amicus curiae are essentially the same. The argument that the appellant was not properly represented is the principal question presented by each brief. The factual background out of which the question is said to arise must be set forth.
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 open 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:
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 appellant was deliberately attempting to keep from going to trial. The record clearly reflects that the appellant had ample time and opportunity to retain counsel. Not only did he have one month of freedom in which to hire trial counsel, but even after he discharged the attorney who represented him at the pleadings, he had six day to engage new counsel. Appellant's excuse that he thought he was supposed to choose counsel on July 12th, is plainly incredulous in view of the facts. Earlier in the case appellant chose an attorney while he was free on bond. This fact conclusively proves that he knew it was not necessary to appear in court to choose an attorney.
In Mastrosky 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 no 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 secure 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 adequate counsel for those...
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