Bashlor v. Wainwright

• Decision Date: 06 July 1966
• Docket Number: No. 34730,34730
• Citation: 189 So.2d 800
• Parties: Charles Thomas BASHLOR, Petitioner, v. L. L. WAINWRIGHT, Director, Division of Corrections, Respondent.
• Court: Florida Supreme Court

Page 800

189 So.2d 800

Charles Thomas BASHLOR, Petitioner, v. L. L. WAINWRIGHT, Director, Division of Corrections, Respondent.

No. 34730.

Supreme Court of Florida.

July 6, 1966.

Charles Thomas Bashlor, in pro. per.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.

PER CURIAM.

By an application for a writ of habeas corpus, the petitioner Bashlor seeks release from the state prison. We issued the writ and a return has been filed. Upon consideration of the record it now appears petitioner is not entitled to release from custody. The writ, therefore, is discharged and the petitioner is remanded to the custody of the respondent.

It is so ordered.

THOMAS, ROBERTS and CALDWELL, JJ., concur.

DREW, J., concurs specially with opinion.

O'CONNELL, J., concurs and agrees with DREW, J.

ERVIN, J., concurs specially with opinion.

BARNS, (Ret.) J., concurs specially with opinion.

DREW, Justice (concurring specially):

I am wholly unable to agree with the conclusion reached by Justice Barns to the effect that the failure to provide counsel to the defendant for the purposes of a direct appeal to the District Court of Appeal after conviction was not in violation of the defendant's right under the Sixth and Fourteenth Amendments to the United States Constitution and directly contrary to the holding of the Supreme Court of the United States in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. Moreover, this Court in a unanimous opinion in 1964, in the case of State v. Weeks, 166 So.2d 892, squarely held:

'It should be noted with emphasis at the outset, that this was not a direct appellate assault upon the judgment of conviction. If it were, Weeks would have an organic right to the aid of counsel. Douglas et al. v. People of the State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Donald v. State of Florida, Fla.App., 154 So.2d 357. In these cases a direct appeal was regarded as a critical step in a criminal prosecution. In such situations an indigent appellant is entitled to the assistance of counsel by virtue of the provisions of the Sixth and Fourteenth Amendments, United States Constitution. * * *'

In Douglas v. People of State of California, supra, the question was squarely presented to be decided by the Supreme Court of the United States. In that case it appeared that under a California rule of criminal procedure the appellate courts were required upon the request of an indigent to make an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed to present his appeal and, after such investigation, the appellate court should appoint counsel if, in their opinion, it would be helpful to the defendant or the court and should deny the appointment of counsel only if, in their judgment, such appointment would be of no value to either the defendant or the court. In considering the request of the defendants in that case, the California court to whom the first direct appeal authorized by law had been taken stated it had gone through the record and had come to the conclusion that "no good whatever could be served by appointment of counsel" and refused to do so. Such was the status of the case when it appeared in the Supreme Court of the United States and the opinion there opens with the observation, agreeing with Mr. Justice Traynor of the California Supreme Court, that "(d)enial of counsel on appeal (to an indigent) would seem to be a discrimination at least as invidious as that condemned in Griffin v. People of State of Illinois * * *." ¹

The United States Supreme Court held that a defendant convicted of a felony (as it was there) had the organic right to be represented by counsel in an appeal from the conviction in the trial court and summarized its holding in the following language:

'* * * In California, however, once the court has 'gone through' the record and denied counsel, the indigent has no recourse but to prosecute his appeal on his own, as best he can, no matter how meritorious his case may turn out to be. The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between 'possibly good and obviously bad cases,' but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.'

Whatever doubt might linger as to the effect of the decision of the Supreme Court of the United States in Douglas v. People of State of California, supra, is dispelled when one considers the concluding paragraph of Mr. Justice Harlan's dissenting opinion in which he states

'I cannot agree that the Constitution prohibits a State in seeking to redress economic imbalances at its bar of justice and to provide indigents with full review, from taking reasonable steps to guard against needless expense. This is all that California has done. * * *'

Regardless of my personal views concerning the matter and the question of whether or not an indigent accused can ever be afforded the same degree of protection as the rich man, the question has now been foreclosed by the highest arbiter of the Constitution of the United States and that holding is binding upon me.

In conclusion it should be observed that I do not hold here that the right to counsel extends beyond the first appellate court to whom an appeal may be taken from a judgment of conviction. This question was also alluded to in Douglas v. People of State of California when the Court said:

'* * * We are dealing only with the First appeal, granted as a matter of right to rich and poor alike * * * from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction * * * or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court's discretion.'

I concur in the remainder of the concurring opinion filed by Justice Barns.

O'CONNELL, J., concurs.

ERVIN, Justice (concurring specially):

I agree to the conclusion reached in Justice Barns' opinion, although I agree with Justice Drew that Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, holds as a principle of due process counsel must be provided by the state for an indigent defendant convicted of a felony who desires an appeal in order that he may be represented appropriately as to a critical step in his case. The recent case of Hollingshead v. Wainwright, 86 S.Ct. 1284, decided April 18, 1966 by the Supreme Court of the United States confirms this proposition. However, I am not certain that the decision in Douglas applies to the instant case. Douglas may not apply retroactively to this case for reasons somewhat similar to those expressed in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, relative the exclusionary rule, or in United States ex rel. Walden v. Pate, 350 F.2d 240 (7 Cir.) relative the rule announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, or in Johnson v. State of New Jersey, 86 S.Ct. 1772, decided by the Supreme Court of the United States June 20, 1966, relative confessions obtained in police interrogations.

In this case, tried in 1951, it appears counsel who represented petitioner at his trial advised petitioner they had done all they could do in the case and refused to take the appeal he requested. In Douglas, a convicted indigent defendant was denied counsel to represent him in a current appeal because the California appellate court in accordance with state procedure ex parte examined the trial record and determined appointment of counsel for the defendant would not be of advantage to him. The Supreme Court of the United States found this procedure and action discriminatory. It is apparent, therefore, that the facts herein are dissimilar to those in Douglas. It is true petitioner alleges that upon the refusal of his trial counsel to appeal his case he applied as an indigent defendant to the circuit court for appointment of counsel to handle his appeal and that the circuit court failed or refused to appoint counsel for that purpose. The circuit judge may have concluded the particular circumstances did not warrant further counsel for the defendant inasmuch as his trial counsel refused to take the appeal and had advised him they had done all they could do in the case.

In non-capital felony cases under our new public defender system provided by F.S. §§ 27.50-27.58, F.S.A., I am advised that the appeal procedure usually followed is that the public defender files notice of appeal within the time provided by law if he deems it appropriate or if he is requested to do so by the indigent convicted defendant and also files in the District Court of Appeal a transcript of the trial record. However, if the public defender in good conscience thereafter concludes from a careful examination of the trial record the appeal is without merit and would be of no avail, he may be permitted to withdraw as counsel provided he notifies his client and the District Court of his intention to withdraw. Such c...