Berriel v. State, 2590
| Decision Date | 13 March 1970 |
| Docket Number | No. 2590,2590 |
| Citation | 233 So.2d 163 |
| Parties | Daniel Raymond BERRIEL, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Steadman S. Stahl, Jr., and Edward M. Kay, of Varon & Stahl, Hollywood, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
We treat Daniel Raymond Berriel's present untimely appeal from a judgment of an adjudication of guilt for the crime of robbery, which imposed a life sentence, as a petition for a writ of habeas corpus. Petitioner's constitutional right to an original direct appeal was frustrated when his court-appointed counsel failed to prosecute the appeal. The entire record of the trial proceedings is before us, briefs on behalf of each party have been filed, so we afford the Petitioner-Berriel review equivalent to an original direct appeal. Collins v. State of Florida, Fla.App.4th District, 230 So.2d 711, opinion filed January 26, 1970; Baggett v. Wainwright, Fla.1969, 229 So.2d 239; Powe v. State, Fla.1968, 216 So.2d 446; Hollingshead v. Wainwright, Fla.1967, 194 So.2d 577.
The petitioner-Berriel and two other co-defendants on December 19, 1963, were charged by information with the crime of robbery. At arraignment on December 26, 1963, the petitioner was represented by privately retained counsel and entered a plea of not guilty. Subsequent to arraignment, the petitioner's private counsel withdrew, and on February 4, 1965, the public defender was appointed to represent the petitioner.
The trial was scheduled for February 9, 1965. On February 8, 1965, one day before trial the public defender by written motion moved for a continuance. The motion was denied. During trial, which commenced on February 9, 1965, petitioner's former privately retained counsel participated in the trial on behalf of one of the co-defendants.
At the conclusion of the trial on February 10, 1965, the jury returned a verdict of guilty for the crime of robbery as charged in the information against the petitioner. The trial court adjudged the petitioner guilty and imposed a life sentence. On February 15, 1965, petitioner by written motion moved for a new trial. The motion was denied. Notice of appeal and assignment of error were subsequently filed, albeit unseasonably, in an abortive attempt to appeal the judgment and sentence.
The petitioner's appeal having been frustrated, he then instituted proceedings under Rule 1.850 Cr.P.R., 33 F.S.A., and having exhausted those remedies, sought a writ of habeas corpus in the Federal Court, Southern District of Florida, which court on October 11, 1968, entered an order that the State of Florida provide the petitioner with a review of his conviction, such review to be either a regular or extraordinary proceeding but not a proceeding under Rule 1.850 Cr.P.R. Such order expressly provided that should the State of Florida fail to comply with these alternatives, the federal court would be obligated to issue the writ sought by the petitioner and grant his release from custody. Thereafter present counsel for the petitioner was appointed, who instituted this proceeding.
The petitioner raises two points for consideration. First, petitioner asserts that he was denied effective assistance of counsel at his trial in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States by the action of the trial court in denying his motion for continuance on the ground that the court-appointed attorney had not had sufficient time to properly prepare a defense.
It is generally accepted that the granting or refusal to grant a continuance is a matter within the discretion of the trial court. Vitiello v. State, Fla.App.1964, 167 So.2d 629; French v. State, Fla.App.1964, 161 So.2d 879. This rule apparently developed by virtue of the trial court's closeness and intimacy with the circumstances of a case, and to warrant a reversal, a showing must be made of a palpable abuse of judicial discretion. Acree v. State, 1943, 153 Fla. 561, 15 So.2d 262.
The courts of this state have not determined any specific time period which would make a difference between there being considered an adequate, fair and reasonable opportunity to prepare for trial and the period of time that is inadequate. In Reed v. State, 1927, 94 Fla. 32, 113 So. 630, the Supreme Court of Florida affirmed the conviction of first degree murder where the defendant was indicted one day and tried the next and convicted.
In the instant case the court-appointed...
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Valle v. State
...may be necessary. See United States v. Pelton, 578 F.2d 701 (8th Cir. 1978) (twenty-day period from arrest to trial); Berriel v. State, 233 So.2d 163 (Fla. 4th DCA 1970) (counsel appointed five days prior to trial). The instant death case, however, does not fall within that We conclude that......
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...153 Fla. 561, 15 So.2d 262; Matera v. State, Fla.App.1969, 218 So.2d 180; Thomas v. State, Fla.App.1969, 223 So.2d 391; Berriel v. State, Fla.App.1970, 233 So.2d 163. It is readily apparent from the record in the instant case that the appellant, by her own actions, contributed to the change......
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Kimbrough v. State
...attacks the discretion exercised by the trial court since only a palpable abuse of discretion justifies reversal. Berriel v. State, 233 So.2d 163 (Fla. 4th DCA 1970). Nevertheless the reasonableness of the time of appointment must be taken into consideration. We stated in Hawkins v. State, ......
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...discretion of the trial court. Acree v. State, 153 Fla. 561, 15 So.2d 262; Matera v. State, Fla.App.1969, 218 So.2d 180; Berriel v. State, Fla.App.1970, 233 So.2d 163; Robinson v. State, Fla.App.1971, 256 So.2d 29. On Consideration of that contention in the light of the record and briefs, w......