Baggett v. Wainwright, No. 38768

CourtUnited States State Supreme Court of Florida
Writing for the CourtERVIN; 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
Citation229 So.2d 239
Decision Date25 November 1969
Docket NumberNo. 38768
PartiesAaron 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.

Page 240

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

Page 241

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...

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214 practice notes
  • Glock v. Singletary, No. 91-3528
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 1995
    ...(same); O'Malley v. Wainwright, 237 So.2d 813, 817 (Fla.2d Dist.Ct.App.1970) ("The Supreme Court of Florida in Baggett v. Wainwright, [229 So.2d 239 (Fla.1969) ], held that in certain instances habeas corpus may be utilized to obtain the equivalent of a direct 20 In Clemons, the Court state......
  • Mobley v. State, Nos. 59051
    • United States
    • United States State Supreme Court of Florida
    • January 28, 1982
    ...filed, but he was allowed to file a belated appeal by petitioning for a writ of habeas corpus, pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). Once all three appeals were properly before us, we consolidated them for purposes of this Appellants raise several points on appeal. Th......
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...in a 3.850 motion as a precondition to his or her right to a belated appeal Page 334 from a criminal conviction in Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). In that case, the court devised the following procedure to determine one's eligibility to a belated appeal. The defendant was r......
  • Pressley v. Wainwright, No. 42684
    • United States
    • United States State Supreme Court of Florida
    • January 25, 1979
    ...for disregarding these principles, the federal courts have referenced Costello v. State, 246 So.2d 752 (Fla.1971); Baggett v. Wainwright, 229 So.2d 239 (Fla.1969); and Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967). None of those decisions, I submit, is relevant. Costello merely relie......
  • Request a trial to view additional results
214 cases
  • Glock v. Singletary, No. 91-3528
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 1995
    ...(same); O'Malley v. Wainwright, 237 So.2d 813, 817 (Fla.2d Dist.Ct.App.1970) ("The Supreme Court of Florida in Baggett v. Wainwright, [229 So.2d 239 (Fla.1969) ], held that in certain instances habeas corpus may be utilized to obtain the equivalent of a direct 20 In Clemons, the Court state......
  • Mobley v. State, Nos. 59051
    • United States
    • United States State Supreme Court of Florida
    • January 28, 1982
    ...filed, but he was allowed to file a belated appeal by petitioning for a writ of habeas corpus, pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). Once all three appeals were properly before us, we consolidated them for purposes of this Appellants raise several points on appeal. Th......
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...in a 3.850 motion as a precondition to his or her right to a belated appeal Page 334 from a criminal conviction in Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). In that case, the court devised the following procedure to determine one's eligibility to a belated appeal. The defendant was r......
  • Pressley v. Wainwright, No. 42684
    • United States
    • United States State Supreme Court of Florida
    • January 25, 1979
    ...for disregarding these principles, the federal courts have referenced Costello v. State, 246 So.2d 752 (Fla.1971); Baggett v. Wainwright, 229 So.2d 239 (Fla.1969); and Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967). None of those decisions, I submit, is relevant. Costello merely relie......
  • Request a trial to view additional results

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