Bashlor v. Wainwright

• Decision Date: 12 July 1979
• Docket Number: No. HH-409,HH-409
• Citation: 374 So.2d 546
• Parties: Charles Thomas BASHLOR, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
• Court: Florida District Court of Appeals

Page 546

374 So.2d 546

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.

July 12, 1979.

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.

ROBERT P. SMITH, Jr., Judge.

The question of Bashlor's entitlement to a delayed first appeal, with assistance of counsel recurs on the commissioner's report after an evidentiary hearing. Bashlor v. Wainwright, 369 So.2d 695 (Fla. 1st DCA 1978). By that decision we held that Bashlor, an indigent now imprisoned 28 years on a life sentence for first degree murder, found by a jury which recommended mercy and thus avoided a mandatory death sentence under 1951 law, was entitled to adduce evidence that he timely requested his volunteer trial attorneys to appeal, and on their refusal vainly requested appointment of appellate counsel by the trial judge, thus entitling him now to that remedy. 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).

Only two witnesses testified before the commissioner under interrogation by Bashlor's present volunteer lawyer and by counsel for the State: Bashlor himself and William A. Hallowes, the distinguished State Attorney who served the Fourth Circuit for many years and who prosecuted Bashlor at trial. The trial judge and Bashlor's two trial lawyers are now dead. Bashlor thus testified without contradiction that, as alleged in his petition for habeas corpus, Bashlor advised his attorneys that he wished to appeal, but they replied they could do nothing more for him; that Bashlor then wrote to the trial judge that he wished to appeal with the assistance of appointed counsel to which the judge replied that he should get in touch with his trial counsel; and that Bashlor wrote back to the judge saying that trial counsel had refused to appeal, to which the judge did not further reply. Bashlor, 369 So.2d at 696. The commissioner's report, appended in its entirety to this opinion, carefully marshals the evidence tending tangentially to corroborate or impeach Bashlor's testimony on the main issue, but it stops short of accepting or rejecting, as a matter of fact, Bashlor's sworn testimony:

Since Bashlor has been incarcerated or in a mental institution for twenty-seven (27) years, trying to judge his demeanor is beyond the capacity of the commissioner.

On this record it is established, by such evidence on the subject as is now available, that Bashlor desired to appeal from the judgment of conviction and life sentence and he made that desire known, vainly, to his volunteer trial counsel and to the trial judge. The more serious question is whether the lapse of time since 1951, and the consequent loss of evidence possibly contradicting Bashlor's testimony of events at that time, should be held to foreclose Bashlor now on principles of laches. Cf. Phillips v. Black, 367 F.Supp. 774 (E.D.Ky.1973), aff'd 497 F.2d 924 (6th Cir. 1974); Hudson v. Alabama, 361 F.Supp. 1102 (M.D.Ala.1973), rev'd, 493 F.2d 171 (5th Cir. 1974); Frost v. Montana, 249 F.Supp. 349 (D.Mont.1966) (effect of delay in asserting defects in guilty pleas).

In the particular circumstances of this case, we decline to penalize Bashlor for delay in asserting his right to a first appeal with assistance of appointed counsel. Between 1951 and 1963, when Douglas v. California ¹ was decided, any assertion by Bashlor of such a right would have been unavailing as a matter of law, and it is doubtful that his claim would have been permitted to proceed to the proof stage. Not until Baggett was decided in 1970 was the retroactivity of Douglas, establishing that right, recognized in Florida. In the meantime, Bashlor asserted to the Florida Supreme Court in 1966 that he was entitled to a counsel-assisted appeal, and that claim was rejected by the Court, not on the merits, but because Bashlor was "not entitled to release from custody" a disposition consistent with principles of habeas corpus as understood at that time, before Hollingshead in 1967 made the writ available to secure delayed appeals. As we stated earlier, Bashlor's 1966 claim of right to appointed counsel was made "too soon" for recognition in Florida, "not too late." Bashlor, 369 So.2d The petition for writ of habeas corpus is GRANTED and the appeal will proceed, as though filed today, in accordance with Hollingshead, Baggett, and the Florida Rules of Appellate Procedure. Bashlor requires no appointment of counsel because he is served by Samuel S. Jacobson, Esquire, without charge; but Bashlor may otherwise proceed as an indigent.

at 698. During the years since Bashlor's right of appeal became more clearly evident, Bashlor surely could have effectively made the claim he presented to us in 1978. But it would shroud the case in pettifog to fault Bashlor for his silence since 1966. Bashlor had then made his claim as effectively as possible, it was rejected, and understandably he remitted his claim and accepted the seeming inevitability of prison life. The state makes no assertion here that any disadvantage it suffers by the delay any loss of witnesses concerning Bashlor's 1951 claim at age 16 of a counsel-assisted appeal, any loss of the trial record, ² any loss of witnesses to the crime, should a retrial be ordered on appeal has increased since 1966, correspondingly increasing Bashlor's burden of proof. We conclude, therefore, that Bashlor is now entitled to his first appeal, and with assistance of provided counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Baggett v. Wainwright, supra ; see also Edge v. Wainwright, 347 F.2d 190 (5th Cir. 1965), cert. denied, 385 U.S. 953, 87 S.Ct. 335, 17 L.Ed.2d 231 (1966); Norris v. Wainwright, 588 F.2d 130 (5th Cir. 1979).

MILLS, C. J., and ERVIN, J., concur.

APPENDIX

REPORT OF COMMISSIONER

(filed February 16, 1979)

Hearing was held before the undersigned acting as special commissioner pursuant to appointment of the District Court of Appeal, First District of Florida. At the hearing petitioner Charles Thomas Bashlor was represented by his attorney before the First District, Samuel S. Jacobson of Jacksonville. Respondent Louie L. Wainwright was represented by Wallace E. Allbritton, Office of the Attorney General, and by Ralph N. Greene, III of the Office of the State Attorney for the Fourth Judicial Circuit. Mr. Bashlor testified on his own behalf and was cross-examined. Testimony was also received from former State Attorney William A. Hallowes, who represented the State during the original trial proceedings in 1951. The testimony and evidentiary exhibits and court file have been considered and examined by the commissioner. Specific findings regarding facts deemed to be particularly salient are as follows:

1. The trial judge A. D. McNeill is deceased.

2. Both defense attorneys, Sam Wilson and Mabry Carlton, are deceased.

3. At the time of his 1951 trial Bashlor was sixteen (16) years old. He had received limited formal education and no formal legal training. He had no family in the Jacksonville area. He was totally without assets or income.

4. Bashlor was convicted of first degree murder...