Cappetta v. State

• Citation: 204 So.2d 913
• Decision Date: 07 December 1967
• Docket Number: No. 1259,1259
• Parties: Nicholas CAPPETTA, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 913

204 So.2d 913

Nicholas CAPPETTA, Appellant, v. STATE of Florida, Appellee.

No. 1259.

District Court of Appeal of Florida, Fourth District.

Dec. 7, 1967.

Rehearing Denied Jan. 11, 1968.

Brian T. Hayes, of Parkhurst & Hayes, Fort Lauderdale, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., Vero Beach, for appellee.

CROSS, Judge.

The defendant-appellant, Nicholas Cappetta, was charged by information with the crime of escape, tried before the court after having waived trial by jury, adjudged guilty, and sentenced to five years in the state prison. It is from this judgment and sentence that the defendant appeals.

Defendant's primary point raises the contention that the trial court erred in denying his motion to conduct his defense in person without the assistance of counsel.

The state contends that the points raised on appeal in this cause were not raised by defendant in proper person in his assignments of error, and the points therefore are waived or have been abandoned and now may not be presented to this court. Defendant candidly admits the fact that the points raised on appeal were not raised by defendant in his original assignments of error but asserts that the points affect basic justice and that this court should waive any defect.

It has been settled for over fifty years in this state that a question of law which was not presented to nor passed upon by the trial court cannot be raised on appeal. Marinelli v. Weaver, Fla.App.1966, 187 So.2d 690; Wasserburg v. Coastal Aluminum Products Construction Co., Fla.App.1964, 167 So.2d 889.

In Love v. Hannah, Fla.1954, 72 So.2d 39, the Supreme Court reiterated the foregoing rule and observed that one well recognized exception is that error affecting fundamental rights may be raised for the first time on appeal. We are also cognizant of F.A.R. 3.7(i), 32 F.S.A., which provides inter alia that 'the Court, in the interest of justice, may notice jurisdictional or fundamental error apparent in the record-on-appeal, whether or not it has been argued in the briefs or made the subject of an assignment of error, or of an objection or exception in the court below.'

The cases and the rules cited do not make it mandatory on the appellate court to consider such questions even though meeting the test laid down. In view of the facts in the instant case, we indulge our discretion to consider the point of whether the trial court erred in denying defendant's motion to conduct his defense in person without the assistance of counsel, since we consider this issue to reach down into the very legality of the trial itself.

The portions of the record which are pertinent to our determination are as follows:

'MR. CAPPETTA: * * * I filed a motion here about May the 14th or 15th, somewhere thereabouts asking the court to permit me to proceed in proper person. I haven't heard anything from that.

'MR. RICH: That is not a pending motion, Your Honor.

'THE COURT: If you do not want this attorney, that is your business, but he is going to sit there at that table and if you want his advice you can ask him for it.

'MR. CAPPETTA: No, sir, I would like to conduct my own cause, please, sir.

'THE COURT: All right, but he will sit there and the record will show that he is there, you have an attorney and he is there.

'MR. CAPPETTA: I have a right to waive attorney, I want to conduct my own cause and waive counsel. I would like the court's permission to have at least 30 days to prepare a case. As you know, I just came from Raiford, I thought it was all over with.

'THE COURT: Motion denied.

'MR. CAPPETTA: I am not going to get a continuance?

'MR. RICH: I would like the record to reflect I am here, Charles Rich, and appointed by the court as attorney of record and I am ready to proceed and prepared.

'THE COURT: Call your first witness.

'MR. RICH: Before we start the trial, Your Honor, I would like to invoke the Rule.'

The Sixth Amendment to the Constitution of the United States guarantees the right of an accused to a fair trial. The right to a fair trial is the very essence of due process. The Fourteenth Amendment to the Constitution requires that no state shall deprive any person of life, liberty, or property without due process of law, and § 12 in the Declaration of Rights, Florida Constitution, F.S.A., imposes similar restraints on this state.

The right to a fair trial guaranteed in the Sixth Amendment is also embodied and applied as to state court proceedings in the due process requirement of the Fourteenth Amendment. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.

A specific organic directive is reflected by § 11 of the Declaration of Rights, Florida Constitution, wherein it is provided that in criminal prosecutions 'the accused * * * shall be heard by himself, or counsel, or both * * *.' Certainly, one of the most elementary prerequisites of a fair trial is the right of an accused to defend himself, either in person or by counsel of his own choosing.

Cases are legion adhering to the right of the defendant to dispense with the help of a lawyer and represent himself at trial. United States v. Plattner, 2 Cir. 1964, 330 F.2d 271, 273; United States v. Private Brands, Inc., 2 Cir. 1957, 250 F.2d 554, 557, cert. denied, 355 U.S. 957, 78 S.Ct. 542, 2 L.Ed.2d 532; United States v. Mitchell, 2 Cir. 1943, 137 F.2d 1006, 1010, reh. denied, 138 F.2d 831; cert. denied, 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083; see Moore v. State of Michigan, 1957, 355 U.S. 155, 161, 78 S.Ct. 191, 195, 2 L.Ed.2d 167; Carter v. People of State of Illinois, 1946, 329 U.S. 173, 174-175, 67 S.Ct. 216, 218, 91 L.Ed. 172; Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268, reh. denied, 317 U.S. 713, 63 S.Ct. 442, 87 L.Ed. 568. Such a right is applicable in state trials as well as federal prosecutions. Moore v. State of Michigan, supra; Carter v. People of State of Illinois, supra; United States ex rel. Hyde v. McMann, 2 Cir. 1958,263 F.2d 940, 943, cert. denied, 360 U.S. 937, 79 S.Ct. 1462, 3 L.Ed.2d 1549.

The right to assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the court. Neither the Federal Constitution nor the Florida Constitution forces a lawyer upon a defendant. Florida courts have taken the position that to force counsel upon any defendant, be he indigent or not, would in itself constitute an infringement of an accused's constitutional rights. Cook v. State, Fla.App.1964, 167 So.2d 793; Swarthout v. State, Fla.App.1964, 165 So.2d 773. The accused may waive his constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open. Adams v. United States ex rel. McMann, supra.

A line of cases state the right of a defendant in a criminal case to act as his own lawyer is Unqualified if invoked prior to the start of the trial. United States v. Plattner, supra; United States v. Bentvena, 2 Cir. 1963, 319 F.2d 916, 938, cert. denied, Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271; United States v. Dennis, 2 Cir. 1950, 183 F.2d 201, 234, aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. Some courts consider this right so basic as to allow a prisoner to argue his own defense in a sanity hearing which is to determine the legal responsibility for the prisoner's acts. People v. Pugach, Bronx County Ct.1962, 33 Misc.2d 938, 942, 225 N.Y.S.2d 822, 826; People v. Cunningham, Bronx County Ct.1954, 2 Misc.2d 162, 164, 134 N.Y.S.2d 212, 215, appeal dismissed, 283 App.Div. 1057, 132 N.Y.S.2d 927.

Other courts adhere to the principle that the right of a defendant to represent himself Is not absolute and will not recognize this right when to do so will disrupt the court's business. United States v. Mitchell, supr...