236 So.2d 442 (Fla. 1970), 39309, State ex rel. Argersinger v. Hamlin

Docket Nº39309.
Citation236 So.2d 442
Party NameSTATE of Florida ex rel. John Richard ARGERSINGER, Petitioner, v. Raymond HAMLIN, Sheriff Leon County, Respondent.
Case DateJune 03, 1970
CourtSupreme Court of Florida

Page 442

236 So.2d 442 (Fla. 1970)

STATE of Florida ex rel. John Richard ARGERSINGER, Petitioner,

v.

Raymond HAMLIN, Sheriff Leon County, Respondent.

No. 39309.

Supreme Court of Florida.

June 3, 1970

Rehearing Denied July 7, 1970.

Page 443

J. Michael Shea, Tampa, for petitioner.

Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.

Phillip A. Hubbart, Miami, Ronald K. Cacciatore, Tampa, and Roy T. Rhodes, of Horne, Rhodes, Brown & Stephens, Tallahassee, for The Florida Bar.

Ralph A. Marsicano, Tampa, for Florida League of Municipalities.

Bruce S. Rogow, Miami, amicus curiae.

ROBERTS, Justice.

We have taken original jurisdiction of this habeas corpus proceeding to reexamine our previous decisions in Fish v. State, Fla.1964, 159 So.2d 866, Watkins v. Morris, Fla. 1965, 179 So.2d 348, and State ex rel. Taylor v. Warden, Fla.1967, 193 So.2d 606, holding that an indigent defendant is not entitled to court-appointed counsel when accused only of a misdemeanor. It is noteworthy that, since our decision in Fish, the United States Supreme Court has denied certiorari in three cases involving a denial of counsel in misdemeanor cases: Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (1966); DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966); and Heller v. Connecticut, 389 U.S. 902, 88 S.Ct. 213, 19 L.Ed.2d 679 (1967). And we are by no means persuaded that the position we took in Fish, and the reasoning upon which it was based, are no longer valid.

But our conclusion in this respect does nothing to extricate the trial courts of this state from the horns of the dilemma in which they now find themselves. On the one hand is the decision of this court in Fish affirming a lower court which had denied a court-appointed counsel to indigent misdemeanants; and on the other hand are the Fifth Circuit federal courts--both trial and appellate--that with the aid of the Sixth and Fourteenth Amendments and the writ of habeas corpus are coercing our state courts in decisions that are as distinguished for their lack of uniformity as for their lack of sound precedent, Insofar as the applicability of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1962) To state trials of misdemeanor charges are concerned.

In this confusing situation we feel that we have no alternative but to adopt the decision of the federal court of this judicial circuit that we feel most nearly approximates any decision in this respect that might be adopted by the Supreme Court of the United States. Assuming Arguendo that that Court will eventually decide that Gideon should be extended to include misdemeanor trials, it is fair to presume that it would apply to the right-to-counsel rule the same principles applicable to a determination of the right to a jury trial, namely, that this right extends only to trials for non-petty offenses punishable by more than six months imprisonment. See Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); and Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966).

This is the standard adopted in Brinson v. State, S.D.Fla.1967, 273 F.Supp. 840, in which the U.S. District Court, speaking through Judge Mehrtens, pointed out that 'the 'absolute right' to counsel in all criminal prosecutions must be qualified by practical exigencies and, unless this is done, the necessities of sound judicial administration would be disregarded and the administration of justice thrown into senseless

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chaos.' Judge Mehrtens noted also that the blanket application of the rule to all misdemeanor cases 'could lead to the appointment of counsel for misdemeanors not normally considered criminal, such as overparking and other petty traffic offenses, jaywalking, dropping trash upon the sidewalk, and like offenses.'

To Judge Mehrtens' observations we might add that misdemeanors are usually associated with trivial offenses described as Malum prohibitum rather than Malum in se, as are most felonies. Misdemeanors have none of the sanctions in addition to fine or imprisonment associated with felonies. A conviction of a felony is punished not only by imprisonment but also by the forfeiture of civil rights, such as the right to vote, to serve on a jury, and to hold public office, see Marsh v. Garwood, Fla.1953, 65 So.2d 15, 19; and not infrequently such a conviction will prove to be an insurmountable barrier to desirable employment.

Thus, the two classes of offenses are widely separated in type, kind, punishment and effect; and even though the basic and fundamental 'due process' right guaranteed by the Fourteenth Amendment must be held to include the Sixth Amendment right-to-counsel in felony cases as was held in Gideon, supra, it does not necessarily follow that this Sixth-Fourteenth tandem can reach down into the lowest echelons of petty offenders and hand out to them the free services of an elaborate and expensive public-defender system to defend them against charges of overparking or other petty offenses. In the words...

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