Asbey v. State, 134

• Decision Date: 30 April 1958
• Docket Number: No. 134,134
• Citation: 102 So.2d 407
• Parties: Henry Grady ASBEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 407

102 So.2d 407

Henry Grady ASBEY, Appellant, v. STATE of Florida, Appellee.

No. 134.

District Court of Appeal of Florida, Second District.

April 30, 1958.

D. C. Laird, Lakeland, for appellant.

Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

BIRD, JOHN U., Associate Judge.

This cause is before this Court on an appeal from the Court of Record from Polk County. The record indicates that the Defendant Henry Grady Asbey was indicted by the Grand Jury of Polk County for second degree murder and that the indictment was transferred to said Criminal Court of Record. On the 24th day of May, 1956 the County Solicitor filed an Information charging the Defendant with second degree murder. In the forenoon of June 4, 1956 the defendant was arraigned, pled guilty and in the afternoon of the same day was sentenced to serve thirty years in the State Prison. On June 25, 1956 D. C. Laird, as attorney for the defendant, filed a motion asking that the defendant be allowed to withdraw his plea of guilty and enter a plea of not guilty to the charge. The motion alleged that prior to the filing of the Information and the entry of the plea of guilty, the defendant had employed Mr. Laird to represent him in this case. That the attorney was not present at the arraignment and that the accused did not advise the Court that he had enployed counsel because he was not familiar with court procedure, was confused, ignorant and afraid, and that counsel had no knowledge of the fact that the Information had been filed or the arraignment was to be on that date. At the hearing of the Motion, defendant moved the Court to permit him to amend the Motion to allege that he was not guilty of the offense and desired a trial by jury. The Court denied the application to amend and overruled the Motion. This Motion was not signed or sworn to by the defendant, but was both signed and sworn to by D. C. Laird, the attorney. At the hearing upon the Motion some testimony was taken from which it appeared that the defendant was a Negro, 35 years of age, with little or no education and entirely ignorant of court procedure and his Constitutional rights, having never been in court before; that the death of Sally Mae Asbey, the person who was alleged to have been killed, was accidental and that when he was arraigned he did not understand and thought that he had already been convicted by the Grand Jury. Section 909.13, F.S.A., reads as follows:

'909.13. The court may in its discretion at any time before sentence permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set aside such judgment, and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty.'

It appears to us that the defendant was very ignorant and highly confused at the time of the entry of this plea. The record does not reflect that the accused was advised of his rights or that he was asked if he had or desired counsel or if he wished to be tried by jury, nor was he advised of the consequences and effect of a plea of guilty. In Cutts v. State, 54 Fla. 21, 45 So. 491, a capital case, it is said:

'It has been the general practice in trial courts in this state when a party charged with felony has been brought to the bar for arraignment, to inquire of the accused whether he had counsel to represent him, and if, upon inquiry, it developed that he had no attorney and was unable to employ one, to ask the accused whether he desired one to represent him.'

It is held in this case, however, that if the record fails to show whether the accused had counsel or not is no grounds for reversal unless it further appears that the right to have counsel was denied, and it is presumed that such right was not denied. In Johnson v. Mayo, Fla., 40 So.2d 134, 135, the Court said:

'Though the courts of this state doubtless have the inherent power to appoint defense counsel in any criminal prosecution where such course seems proper in the interest of fairness and justice, there is no requirement under Florida law that counsel be furnished an insolvent defendant, except in a prosecution involving a capital offense. Johnson v. Mayo, 158 Fla. 264, 28 So.2d 585; Sec. 909.21, Florida Statutes, 1941, F.S.A. Such duty as may rest upon the Florida...