Brinson v. State of Florida, County of Dade

• Decision Date: 20 September 1967
• Docket Number: Civ. No. 67-807.
• Citation: 273 F. Supp. 840
• Parties: Sisrow BRINSON, Petitioner, v. STATE OF FLORIDA, COUNTY OF DADE, and E. Wilson Purdy, Sheriff of Dade County, Respondents.
• Court: U.S. District Court — Southern District of Florida

273 F. Supp. 840

Sisrow BRINSON, Petitioner, v. STATE OF FLORIDA, COUNTY OF DADE, and E. Wilson Purdy, Sheriff of Dade County, Respondents.

Civ. No. 67-807.

United States District Court S. D. Florida.

September 20, 1967.

Henry A. Edgar, Jr., Miami, Fla., for petitioner.

Roy Wood, Asst. State Atty., Miami, Fla., for respondents.

OPINION SUPPLEMENTING ORDER

MEHRTENS, District Judge.

Sisrow Brinson filed a petition for writ of habeas corpus with this Court seeking release from his confinement in the Dade County Jail, Miami, Florida.

The petitioner attacks sentences imposed by the Metropolitan Court of Dade County, Florida. After pleas of not guilty, the petitioner was convicted of seven traffic offenses, as follows:

1. Careless driving, Code of Metropolitan Dade County, Florida, § 30-17(a). (Hereinafter, "Code")

2. Leaving the scene of an accident involving personal injuries, Code § 30-154(1).

3. Careless driving, Code § 30-17(a).

4. Leaving the scene of an accident involving personal injuries, Code § 30-154(1).

5. Careless driving, Code § 30-17(a).

6. Leaving the scene of an accident involving personal injuries, Code § 30-154(1).

7. Driving while under the influence of intoxicating liquor, Code § 30-15(b) or (c).

The Code provides penalties for the above-named offenses, as follows:

1. Careless driving: fine not to exceed three hundred dollars or imprisonment in the county jail not to exceed sixty days, or both. Code § 30-17(b).

2. Driving while under the influence of intoxicating liquor: for the first conviction, imprisonment for not less than forty-eight hours nor more than sixty days or by fine of not less than one hundred dollars nor more than five hundred dollars, or both; for the second conviction hereunder within three years of the first, imprisonment of not less than ten days nor more than six months, and, in the court's discretion, a fine of not more than five hundred dollars; and for the third conviction within five years of the first conviction, imprisonment of not less than thirty days nor more than twelve months, and, in the court's discretion, a fine of not more than five hundred dollars.

In addition, if violation of this section results in personal injuries, the minimum fine rises to two hundred fifty dollars, and the minimum imprisonment rises to ten days. This provision of necessity applies to the first offense. Code §§ 30-15(b) and (c).

3. Leaving the scene of an accident involving personal injuries: for the first conviction, imprisonment for not more than sixty days or by fine of not more than five hundred dollars, or both. On a second or any subsequent conviction, imprisonment of not more than one year or by a fine of not more than one thousand dollars, or by both.

The petitioner received sentences upon his convictions below the maximum allowable penalties. For each of the careless driving convictions, he was sentenced to pay a fine of $50.00 or serve five days in the county jail. For each of the convictions for leaving the scene of an accident where personal injuries are involved, he was sentenced to a term of 20 days in the county jail and a fine of $200.00, and in default of payment, an additional term of 20 days. A sentence of 10 days in jail and a fine of $250.00 or an additional term of 25 days was levied on Brinson for driving under the influence of intoxicating liquor. Thus, petitioner was to serve a minimum jail term of 70 days, plus a total of 100 more days if he failed to pay the fines. He began serving his time on April 17, 1967, and, having failed to pay any of the fines, he remained there until this Court ordered his release on September 7, 1967.

On May 24, 1967, petitioner first sought habeas corpus relief in the United States District Court. In his petition Brinson attacked the validity of his sentence on the ground that he was denied the right to appointed counsel at his trial, in violation of the United States Constitution. On June 15, 1967, that petition was denied because the petitioner had failed to exhaust state remedies.

In his second petition, Brinson alleges that he has exhausted his state remedies since the denial of the first federal habeas corpus petition and reasserts that he was denied a constitutional right to appointed counsel. The threshold question is whether state remedies have been exhausted. Petitioner has undisputedly attempted to obtain a state determination regarding his right to counsel. His ultimate effort, a petition for writ of habeas corpus to the Supreme Court of Florida, was denied July 17, 1967. The respondent does not dispute that petitioner's efforts constitute a sufficient exhaustion of state remedies. This Court finds that the comity requirement imposed by Title 28 U.S.C. § 2254 has been satisfied. See McGarrah v. Dutton, 381 F.2d 161 (5th Cir. July 26, 1967); McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965).

Petitioner was not advised of a right to counsel at any time during the state prosecution or that an attorney would be appointed to represent him if he could not afford one. The Supreme Court of the United States has determined that indigent defendants in state criminal prosecutions have the right to appointed counsel, unless that right is competently and intelligently waived. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, that court has not decided whether the Constitution requires the assistance of counsel in a prosecution upon a misdemeanor charge or upon traffic offenses. See, DeJospeh v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966); Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (1966).

The Florida Supreme Court has held that an accused is not entitled as a matter of right to state appointed counsel in misdemeanor cases. Watkins v. Morris, 179 So.2d 348 (Fla.1965); Fish v. State of Florida, 159 So.2d 866 (Fla.1964).

It is my opinion that the right to assistance of counsel applies to state court prosecutions for serious offenses, whether they be labeled felonies or misdemeanors. The concept of due process embodied in the Fourteenth Amendment requires counsel for all persons charged with serious crimes. See, opinion of Reed, J., in Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948). The right to assistance of counsel is determined by the seriousness of the offense, measured by the gravity of the penalty to which the defendant is exposed on any given violation. Such a rule, in my opinion, fully complies with common and fundamental ideas of fairness and constitutional requirements.

In the present case, the petitioner's conviction upon the second offense of leaving the scene of an accident involving personal injuries exposed him to a maximum sentence of imprisonment for one year. The third conviction of the same offense exposed him to the possibility of confinement for an additional year. When a defendant is exposed to possible imprisonment for one year, he is charged with a serious offense. Accordingly, I hold that petitioner was entitled to assistance of counsel in the Metropolitan Court to defend against the two charges aforementioned. The fact that the offense charged was a violation of the Metropolitan Dade County Code, and not termed a felony, is of no consequence. A man who is charged with an offense for which he can spend a year in jail is entitled to assistance of counsel regardless of whether the offense be labeled a felony or a misdemeanor.

Since Gideon v. Wainwright overruled the "special circumstances" test of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), regarding right to counsel, the Supreme Court has not explicitly recognized that the existance of the right depends on the seriousness of the penalty in misdemeanor and traffic cases. The concept, however, was utilized by the Supreme Court in the case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The case involved a juvenile delinquency proceeding in which Gault was determined to be a "delinquent," with the consequence that he was committed to a state institution. 387 U.S. at 7, 87 S.Ct. 1428 Gault claimed denial of right to counsel in a habeas corpus petition. The Supreme Court held that due process required that Gault receive assistance of counsel because "the issue * * * whether the child would be found to be `delinquent' and subjected to the loss of his liberty for years was comparable in seriousness to a felony prosecution." Emphasis added 387 U.S. at 36, 87 S.Ct. at 1448. The "serious offense" rule, in other words, has been expressly used by the Supreme Court to determine the right to counsel.

In Gault, the court cited the recommendations of the President's Crime Commission that counsel in juvenile cases was necessary to orderly justice. That same Commission, whose members include some of America's most distinguished legal scholars and practitioners, has also studied the problem of right to counsel in misdemeanor and traffic cases. Their recommendation is explicit: "as quickly as possible, * * * counsel should be provided to every criminal defendant who faces a significant penalty, if he cannot afford to provide counsel for himself." Emphasis added The Challenge of Crime in a Free Society: A report by the President's Commission on law enforcement and administration of justice, page 150 (U.S. Government Printing Office, Washington: 1967). The meaning of the recommendation clearly is that all persons charged with a crime, measured by the magnitude of the penalty, should be entitled to counsel. On the other hand, the Commission recommends that "petty charges" should be excluded from coverage. Id. at viii. In federal practice, the distinction between petty offenses and all other crimes, as applied to right to counsel, is well established. The federal standard is found in the Criminal Justice Act of 1964, 78 Stat. 552 (1964), as amended, 18 U.S.C. § 3006A (1964). The 1964 Act divides public offenses into...