Barber v. State

• Decision Date: 20 November 1973
• Docket Number: No. S--368,S--368
• Parties: Edward Wilson BARBER and Charles Richard Barber, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 23

286 So.2d 23

Edward Wilson BARBER and Charles Richard Barber, Appellants, v. STATE of Florida, Appellee.

No. S--368.

District Court of Appeal of Florida, First District.

Nov. 20, 1973.

Rehearing Denied Dec. 20, 1973.

Richard W. Ervin, III, Public Defender, and Robert C. Parker, Jr., Asst. Public Defender, for appellants.

Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.

JOHNSON, Judge.

The defendants, appellants herein, were charged by information with two counts: breaking and entering Perret's Dairy, Callahan, Florida, with intent to commit grand larceny; and the same charge as to breaking and entering the Seaboard Airline Railroad Depot. The jury found both guilty on both counts and the defendants were sentenced to two years.

Before we discuss the evidence as found in the record on appeal, we are confronted with a rule of procedure which we have to decide can be dispensed with under the facts of this case, or as an exception created by case law.

As to a preface to the material point of this opinion, we think the words of Justice Glenn Terrell are appropriate as found in Kelley v. Gottschalk, 196 So. 844 (Fla.1940, to wit:

'. . . The administration of justice is the most precious function a democracy is called on to perform and no rule of procedure was ever intended to defeat it. Courts must have rules to guide them in the performance of this function, but it has never been considered improper to toss right and common sense in the scales and weigh them with the evidence to reach a just result. Rules of procedure are as essential to administer justice as they are to conduct a baseball game, but they should never be permitted to become so technical, fossilized, and antiquated that they obscure the justice of the cause and lead to results that bring its administration into disrepute.'

32 F.S.A. Florida Appellate Rules, Rule 6.16 provides, inter alia:

'a. . . . The court may also in its discretion, if it deems the interests of justice to require, Review any other things said or done in the cause which appear in the appeal record, . . .' (Emphasis supplied.)

'b. Sufficiency of Evidence. Upon an appeal by the defendant from the judgment the appellate court shall review the evidence to determine if it is insufficient to support the judgment where this is a ground of appeal. . . .'

In the case sub judice, the defendants were represented by State-appointed counsel, to wit: The Assistant Public Defender. During the progress of the trial, the defendants' counsel did not make a motion for a directed verdict at the end of the State's case nor at any later time. No motion for a new trial was made, nor any The trial court, after adjudging the defendants insolvent, appointed the same public defender's office that had represented the defendants at the trial session to handle this appeal. Timely notice of appeal was filed and assignments of error were filed. An Assistant Public Defender different than the one who handled the trial, filed the assignments of error, and the first assignment was: '1. The trial court erred in denying the Defendants' Motion for New Trial.' We cannot find in the record that counsel for defendants ever made such motion and in the brief of the appellants it is admitted that no such motion was made. Therefore, we are confronted with the Rule, supra.

other post-trial motions, wherein the sufficiency of the evidence was questioned.

In appellants' brief, the first point on appeal is:

'THE DEFENDANTS WERE DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT A CRITICAL STAGE OF THE CRIMINAL PROCEEDINGS.'

The latest authority we have found on the question of procedure on this Point is Chester v. State, 276 So.2d 76 (Fla.App.2nd, 1973), wherein the Second District Court said:

'. . . However, the question of inadequate representation is not one that can properly be raised for the first time on a direct appeal from an adverse judgment because it is a matter that has not previously been ruled upon by the trial Court. Such ground within the restricted orbit of 'State action' must be raised preliminarily during the trial in order to afford a contention upon appeal. An appellate Court may confine itself only to a review of those questions which were before the trial Court and upon which a ruling adverse to the defendant was made. (Citations omitted).

'Inasmuch as the sole point raised here for reversal is foreclosed to appellant Chester, the judgment appealed from must be and is--

'Affirmed.'

This rule in Chester, supra, puts us into about the same boat, so far as considering the question of inadequate representation of counsel on appeal, as we are in the question of reviewing the sufficiency of the evidence when defendants' counsel did not preserve the right to such review by motion for a directed verdict, motion for new trial or other motions, pre- or post-trial, which would have insured the defendants a right to review on appeal the sufficiency of the evidence.

In Wainwright v. Simpson, 360 F.2d 307 (5th Cir., 1966), the Court said:

'. . . However laudable his motive, court-appointed counsel for Simpson had no authority, without consulting with or obtaining the consent of his client, deliberately to forego Simpson's right to move for a new trial or to appeal. When he did so, counsel proved himself ineffective. More, he completely abdicated his function and deprived Simpson of the aid of any counsel at a critical stage of the criminal proceeding.

'Thus the absence of aid of counsel has deprived Simpson of his right to move for a new trial and to appeal.'

The Supreme Court of Florida has consistently held, in construing Florida Appellate Rule 6.16, that unless the sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court via a motion for a directed verdict, motion for a new trial wherein the sufficiency of the evidence is a gound thereof, or such other motions wherein the trial court's attention is directed to the question of the sufficiency of the evidence, and ruled upon, such question is not reviewable by the appellate courts. ¹

The defendants-appellants find themselves in a maze of the Rules of Procedure and construction thereof by case law, and in a quandary as to how to reach the appellate level with reviewable points of appeal without violating the rules and decisions mentioned supra. Therefore, we think the words of wisdom and good law enunciated by the revered Justice Glenn Terrell in the Kelley case, supra, must now be applied to reach justice without destroying the time honored construction of the Rules of Appellate Procedure.

If, as the appellants contend in this appeal, 'State action' (the failure of the Public Defender to move for a directed verdict or for a new trial)...