Baggett v. Wainwright

• Court: Florida Supreme Court
• Writing for the Court: ERVIN; Although the last procedure referred to appears the best general approach in matters of the present kind, we choose in the instant case to avoid further delay in this case which is at issue and has been argued before us to appoint Honorable Wi
• Citation: Baggett v. Wainwright, 229 So.2d 239 (Fla. 1969)
• Decision Date: 25 November 1969
• Docket Number: No. 38768,38768
• Parties: Aaron A. BAGGETT, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.

Page 239

229 So.2d 239

Aaron A. BAGGETT, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.

No. 38768.

Supreme Court of Florida.

Nov. 25, 1969.

Rehearing Denied Jan. 12, 1970.

Brian T. Hayes, Asst. Public Defender, for petitioner.

Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.

ERVIN, Chief Justice.

This cause is before us on an original pro se petition for writ of habeas corpus filed by Petitioner Baggett and a return filed on behalf of Respondent.

In December, 1962 after a jury trial conducted by the Criminal Court of Record, Polk County, Petitioner was adjudged guilty and sentenced to serve concurrent sentences of twenty years and five years for the crimes of breaking and entering a dwelling house with intent to commit a felony and grand larceny. Petitioner alleges he was represented during trial by privately employed counsel but was unable to retain said counsel for the purpose of appealing his conviction for the reason that Petitioner became indigent. Petitioner alleges both he and his trial counsel thereupon informed the trial judge of Petitioner's indigency and of his inability to employ counsel to pursue an appeal and requested the trial judge to appoint counsel to represent Petitioner on appeal. Petitioner further alleges the trial judge advised him that an attorney would be appointed to prosecute Petitioner's appeal. Petitioner alleges that after he was confined to prison he wrote the trial judge in February, 1964 inquiring of the status of his appeal. He alleges he was then informed by the trial judge that his appeal was being handled by the public defender. Subsequent communication with the public defender revealed his appeal had never been filed.

The return of Respondent does not controvert the factual allegations of Petitioner. However, Respondent contends Petitioner's allegations are insufficient to support the relief requested for the reason Petitioner has not made a showing of at least arguable reversible error occurring at trial which might have prompted reversal on appeal. Respondent also maintains the contention raised by Petitioner herein was denied by the trial court in proceedings to vacate under Crim.Pro. Rule 1.850, 33 F.S.A. and that this denial was affirmed on appeal by the District Court of Appeal, Second District.

The thrust of Petitioner's allegations in this case appears directed toward an attempt to demonstrate that through State action Petitioner was deprived of, or inadequately afforded, the assistance of counsel for the purpose of directly appealing his conviction.

Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, holding an indigent defendant constitutionally entitled to state-appointed counsel for the purpose of directly appealing a conviction, was decided on March 18, 1963. There is ample authority for the view that the Douglas decision applies retroactively and thus governs Petitioner's alleged attempt to secure state-appointed counsel in the instant case. Pate v. Holman, 341 F.2d 764 (5th Cir.1965); Harders v. California, 373 F.2d 839 (9th Cir. 1967); Donnell v. Swenson, 258 F.Supp. 317 (S.D.Mo.1966); United States ex rel. Mitchell v. Fay, 241 F.Supp. 165 (S.D.N.Y.1965); Spaulding v. Taylor, 234 F.Supp. 747 (D.C.Kan.1964).

In cases involving application of the Douglas rationale, factual difficulties emerge in an attempt to resolve two critical questions or tests. First, did the criminal defendant make known to the trial judge his indigency and desire to appeal so as to generate the State's duty to afford the necessary incidents of an appeal, including representation of counsel? Secondly, a criminal defendant having generated the state's duty to provide the necessary incidents of an appeal, do the facts show a deprivation through state action of the rights guaranteed to said defendant?

The first test above is derived as a result of recognition of an important distinction between the right to counsel on appeal and the right to counsel at trial. While both of these rights are designated 'absolute' (see Douglas, supra), in the case of an appeal it is not constitutionally necessary that the trial judge initiate action toward the appointment of appellate counsel by advising a convicted person of his rights or by making inquiry as to his indigency. Pate v. Holman, supra. This distinction is probably attributable to the fact that the defendant himself is responsible for initiating appeal proceedings, whereas in the case of trial proceedings the State leads the way. Such latter proceedings should not be validated if the State fails to initiate steps necessary to insure affording all the requirements of due process, including the right to counsel.

The scope of the State's duty, vis a vis the trial judge, to Initiate action toward affording a defendant the right to appeal and the incidents necessary thereto, although of a passive constitutional nature, may well be made more stringent by virtue of procedural requirements imposed by rules or statutes. Compare the right of a defendant in a Federal court under Rule 37(a)(2), Feb.R.Crim.P. See Rodriguez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). However, in Florida, since there are no rules or statutes imposing a duty on the trial judge to initiate action on behalf of a defendant to better enable him to utilize his appellate rights, the occurrence of the State's duty in this respect must be measured against the constitutionally imposed requirements as enumerated above. See Powe v. State (Fla.), 216 So.2d 446; Schaeffer v. Wainwright (Fla.1969) 218 So.2d 442.

In the present case, we think the allegations set forth in the petition, if proven, are sufficient to have generated or raised a duty upon the State to afford Petitioner the necessary incidents of an appeal, including appointment of counsel. Petitioner clearly alleges he apprised the trial judge of his indigency and desire to appeal. This quite readily satisfies the initial burden placed on Petitioner. Our conclusion in this respect does not ignore the fact that in this case Petitioner was represented by privately retained counsel during the original trial. Although some cases acknowledge that in this situation the State may rely on a presumption that the accused's lawyer will protect his client's rights on appeal, this presumption is rebuttable. Pate v. Holman, supra. The allegation in the instant case that Petitioner and his trial counsel advised the trial judge of Petitioner's indigency and of his inability to retain trial counsel on appeal, if proven, clearly rebuts any presumption arising from the fact that Petitioner was represented by counsel of his own choosing during his trial. Schaeffer v. Wainwright, supra.

We now consider the second requirement indicated above. Of course, the requirement that the deprivation of the necessary incidents of an appeal be attributable to State action springs from the required presence of State action to activate the equal protection and due process clauses of the Fourteenth Amendment to the Federal Constitution. In most instances little difficulty is encountered in ascertaining whether there exists a failure or deprivation attributable to state action. Generally, in the present context, state action is shown when a responsible official in the State's system of justice fails to take proper steps toward affording the necessary incidents of an appeal, e.g., appointment of counsel for a convicted defendant, after the State's duty to act in this particular is activated by the defendant's compliance with the requirements set forth in the first test stated above. Applying this rule to the present case, one could not question the existence of state action if the established facts show the trial judge never responded to such test and appointed counsel to represent Petitioner on appeal. The allegations in this case do not exclude the possibility of this factual finding.

If, however, it should be factually established in this case that the trial judge actually appointed counsel to represent Petitioner on his appeal and that the failure to timely perfect and prosecute Petitioner's appeal was due to the default or neglect of the court-appointed attorney, a difficult question is presented as to whether Petitioner was deprived by State action of his right to appeal, or the necessary incidents thereto. The difficulty reposes in the contention that the requirements of equal protection do not operate to afford an indigent criminal appellant any higher or greater rights than those available to a nonindigent. Since the risk of failure to timely perfect an appeal is one which might befall a nonindigent represented by private counsel, it is argued this type of default should not be attributed to the State in testing the application of the Fourteenth Amendment. We are not persuaded by this argument.

A chain of decisions subsequent to Douglas v. California, supra, culminating in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), makes it quite clear that the requirement of Douglas is not necessarily met simply by the appointment of counsel to represent an indigent defendant on appeal. The Anders case...