Bashlor v. Wainwright

• Decision Date: 10 August 1978
• Docket Number: No. HH-409,HH-409
• Parties: Charles Thomas BASHLOR, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
• Court: Florida District Court of Appeals

Page 695

369 So.2d 695

Charles Thomas BASHLOR, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.

No. HH-409.

District Court of Appeal, of Florida, First District.

Aug. 10, 1978.

Samuel S. Jacobson of Datz, Jacobson & Lembcke, Jacksonville, for petitioner.

Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.

ON PETITION FOR REHEARING

SMITH, Judge.

In 1951, when he was sixteen years old, Charles Bashlor was convicted of murder in the first degree and was sentenced to life imprisonment by the Circuit Court of Duval County. Bashlor did not appeal. He remains in prison today. His petition for writ of habeas corpus alleges that he lost his right to ordinary appellate review because the trial judge improperly denied or ignored his request for appointed counsel to take an appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

Bashlor was represented at trial by two volunteer lawyers. Bashlor alleges that after his conviction he advised his attorneys that he wished to appeal, but they replied that they could do nothing more for him. Bashlor alleges he then wrote the trial judge that he wished to appeal and requested that counsel be appointed. The judge replied that he should get in touch with his trial counsel. Bashlor alleges he then wrote back to the judge, informing him that trial counsel had refused to take an appeal, but the judge did not reply. Bashlor's conviction has never been reviewed. He requests that we grant full appellate review now, 27 years after his conviction, to remedy the trial judge's error. Hollingshead v. Wainwright 194 So.2d 577 (Fla.1967); Cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968); Baggett v. Wainwright, 229 So.2d 239 (Fla.1970).

By an unpublished order we initially denied Bashlor's petition without prejudice to a further application to the trial court, pursuant to Fla.R.Crim.P. 3.850. Bashlor's petition for rehearing rightly suggested that no remedy is available in the trial court because the remedy sought is a counsel-assisted appeal from the judgment of conviction. Baggett v. Wainwright, 229 So.2d 239, 243 (Fla.1970). We have reconsidered the petition on the merits, after receiving briefs and extensive oral argument.

The state does not address Bashlor's factual allegations, but says that the present petition is barred by the doctrine of res judicata because, in 1966, the Supreme Court of Florida denied Bashlor's habeas corpus petition which complained of the denial of appellate counsel. Bashlor v. Wainwright, 189 So.2d 800 (Fla.1966), Cert. denied, 386 U.S. 1022, 87 S.Ct. 1378, 18 L.Ed.2d 461 (1967). Bashlor's 1966 petition to the Supreme Court, submitted without counsel, was the second of Bashlor's collateral attacks on the judgment. Earlier, and also without counsel, Bashlor petitioned the trial court to arrest and vacate the conviction on the ground that a confession was obtained and used in violation of his right to counsel. The trial court had denied that petition, and this court affirmed, without opinion. Bashlor v. State, 177 So.2d 80 (Fla. 1st DCA 1965). Bashlor's 1966 petition to the Supreme Court, raising for the first time an asserted right to a counsel-assisted appeal, was denied in a brief per curiam opinion which stated that Bashlor was "not entitled to release from custody." Bashlor, 189 So.2d at 801.

In order to determine what questions were raised before and decided by the Supreme Court of Florida in 1966 and by the United States Supreme Court, when denying certiorari in 1967, we have examined the records of those cases which counsel have submitted. We find that the state urged to the Supreme Court of Florida that habeas corpus should be denied because Bashlor had not raised the issue of appeal remedies in the trial court by a Rule 1 (now Fla.R.Civ.P. 3.850) motion. ¹ In response to Bashlor's petition for certiorari in the Supreme Court of the United States, filed with the assistance of Bashlor's present counsel, the state argued that the Florida Supreme Court's decision rested on purely procedural grounds. In contrast, the state now urges that the discharge of Bashlor's 1966 petition was a disposition on the merits which we must respect as final.

Res judicata is a judicial policy intended to make an end to litigation and to give dignity and respect to judicial proceedings. Eastern Shore Sales Co. v. City of North Miami Beach, 363 So.2d 321, at 324 (Fla.1978). A final decision, even though erroneous, will not be disturbed. Id., at 323. However, a judgment entered on grounds not involving the merits is not a basis for barring later consideration of the merits. Kent v. Sutker, 40 So.2d 145 (Fla.1949); Cabinet Craft, Inc. v. A. G. Spanos Enterprises, Inc., 348 So.2d 920 (Fla. 2d DCA 1977); Sorensen/Fletcher Construction Co. v. Grasso, 319 So.2d 194 (Fla. 4th DCA 1975), Cert. dismissed, 324 So.2d 90 (Fla.1975).

The language of the Supreme Court's 1966 decision on Bashlor's claim, the separate opinions of the concurring justices, and the subsequent decisions of the Court all indicate that the Court denied Bashlor's 1966 petition without deciding the merits of his claim to a right of appointed counsel on appeal. Res judicata, therefore, is no bar. The concurring opinions express disagreement over the impact of the United States Supreme Court's 1963 decision in Douglas v. California. Justice Drew, with Justice O'Connell concurring, believed that Douglas required the state to provide counsel to indigent defendants for an appeal. 189 So.2d at 801. Justice Ervin agreed, but doubted that Douglas was intended to be applied retroactively. Id. at 803. Justice Barns...