Cash v. Culver

• Decision Date: 11 May 1960
• Citation: 120 So.2d 590
• Parties: Ray CASH, Petitioner, v. R. O. CULVER, State Prison Custodian (R. B. Gramling, Acting Director of the Division of Corrections of the State of Florida, as Custodian of the Florida State Prison), Respondent.
• Court: Florida Supreme Court

Page 590

120 So.2d 590

Ray CASH, Petitioner, v. R. O. CULVER, State Prison Custodian (R. B. Gramling, Acting Director of the Division of Corrections of the State of Florida, as Custodian of the Florida State Prison), Respondent.

Supreme Court of Florida.

May 11, 1960.

Potter, Langbein & Burdick and Irwin L. Langbein, West Palm Beach, for petitioner.

Richard W. Ervin, Atty. Gen., and Edward S. Jaffry, Asst. Atty. Gen., for respondent.

THORNAL, Justice.

By original application for a writ of habeas corpus petitioner Cash seeks release from the State prison where he is serving a fifteen year sentence for the crime of burglary.

We must determine whether Cash was deprived of a reasonable opportunity to employ counsel of his own choice and therefore denied due process of law.

Upon our original consideration of the petition we denied the writ without opinion. Our judgment was reversed by the Supreme Court of the United States. Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557. Pursuant to the mandate in the case last cited we issued the writ and required return instanter. The matter is now before us upon the petition and the return supplemented by a transcript of the entire record of the trial which resulted in a jury verdict of guilt and the fifteen year sentence.

The parties here agree that the trial record adequately presents the factual situation which produced the original petition. They advise us that the further taking of testimony would reveal nothing of consequence that would throw any additional light upon the claims asserted in the petition. However, by the return the respondent has denied all of the allegations of the original petition. As we shall see there are some factual aspects of the matter not concluded by the trial record.

The opinion of the Supreme Court of the United States in Cash v. Culver, supra, will reveal that the Court accorded all of the factual allegations of the petition prima facie verity absent a denial or any factual showing to the contrary. An examination of the opinion of the United States Court will show that the Court merely assumed the correctness of the undenied allegations of the petition for the purpose of ordering the issuance of the writ. The trial record now reveals that, for all practical purposes, the factual allegations of the petition are without support in the record insofar as the right of Cash to have court-appointed counsel might be concerned. In the petition Cash alleged that he had requested the judge to appoint an attorney to represent him at his second trial. He pictured himself as an uneducated farm boy with no experience in the technicalities of the law or the ways of the courtroom. The petition urges that the lack of education and inexperience of the petitioner, supplemented by the complexities of the trial and the obvious grievous errors that were committed by the trial judge, all add up to a deprivation of due process in violation of the Fourteenth Amendment to the Constitution of the United States.

In the matter of the alleged refusal of the trial judge to appoint counsel the petitioner's claims are entirely devoid of merit. In the first place it is now conceded that he did not request the trial judge to appoint a lawyer to represent him. Furthermore, our study of the trial record reveals that the petitioner Cash conducted his defense with almost unbelievable competency for a layman. While perhaps some errors were committed in the conduct of the trial, they were not of such nature as to justify correction in a proceeding of this kind.

Under applicable Florida Statutes it is only in capital cases that a trial judge is mandatorily required to supply counsel for an indigent defendant. Section 909.21, Florida Statutes, F.S.A. Johnson v. Mayo, 158 Fla. 264, 28 So.2d 585; Butler v. Culver, Fla.1959, 111 So.2d 35.

If upon examination it is apparent that by reason of age, ignorance, or inexperience of the accused, the gravity of the offense or complexity of the issues, he would not be able to represent himself fairly and adequately, then the trial judge has an obligation to see to it that the accused has a lawyer even though the case is noncapital. However, this responsibility of the trial judge arises out of the due process provisions of the Fourteenth Amendment to the Constitution of the United States, rather than by virtue of the provisions of the laws of the State of Florida. Johnson v. Mayo, Fla.1949, 40 So.2d 134; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647. When we apply these standards of measurement we are convinced that insofar as refusal to provide counsel is concerned, the contentions of the petitioner are entirely without support. As pointed out above he did not request counsel. Butler v. Culver, supra. He actually handled his own defense with a degree of professional finesse oftentimes found lacking in specialists in the field of criminal law. To illustrate the soundness of this observation the record shows that petitioner capably presented an oral motion for a continuance at the beginning of his trial; he examined prospective jurors and exercised peremptory challenges; he submitted approximately fifty-five objections to various items of evidence and four times moved to strike certain evidence; he subjected the State's witnesses (including a special agent of the F.B.I.) to a very thorough cross-examination; at the conclusion of the State's case, he presented a motion for a directed verdict, and although he did not take the witness stand the record shows that he delivered an argument to the jury which required one hour and fifteen minutes. The serious errors described in the petition and considered by the Supreme Court of the United States in arriving at its judgment in the issuance of the writ are not supported by the transcript of the trial record. Insofar as refusal to appoint counsel is concerned we conclude, therefore, that there is not here present any State action tantamount to a deprivation of due process of law within the proscriptions of the Fourteenth Amendment.

We are next confronted by what appears to us to be a much more serious problem. Petitioner contends that even though he was denied no constitutional right when the trial judge failed to appoint counsel, nevertheless, he was denied a reasonable opportunity to obtain his own counsel. He asserts that a reasonable chance to obtain a lawyer to represent one in a serious criminal matter is as much an aspect of due process as is notice and an opportunity to be heard.

We must momentarily recur to the factual background. In his first trial on the charge of burglary in December, 1954, petitioner was represented by counsel and the result was a mistrial. According to certain exhibits appearing in the record, petitioner's then attorney, Mr. Carr, as late as January 18, 1955, was representing the petitioner because at that time he agreed with the State Attorney to set the second trial for February 21, 1955. All of this time, of course, Cash was incarcerated in the State Prison at Raiford. The record also reveals that on February 15, 1955, Mr. Carr executed a motion to withdraw as counsel of record, sent a copy to the petitioner and requested the State Attorney to present it to the trial judge. On February 15, 1955, the State Attorney notified petitioner who was in the State prison, that his defense counsel expected to withdraw from the case and the trial would be held on February 21. On February 16, 1955, in what appears to have been an ex parte proceeding without the presence of or any statement from the petitioner, the trial judge entered an order permitting his lawyer to withdraw from his defense. So far as this record reveals petitioner was accorded no opportunity to object to the withdrawal or otherwise explain his position in the matter. See Canon 44, Rule B, Ethics Governing Attorneys. 31 F.S.A. p. 779.

When taken to trial on the morning of February 21, the petitioner orally moved the court to grant him a continuance until he could obtain a lawyer to represent him. He explained that he had been confined to the State prison, that his mother had made an effort to obtain counsel for him but that the shortness of time, among other things, had prevented her from obtaining a lawyer. We emphasize that this motion was based upon the petitioner's alleged need for time to obtain his own counsel. The motion did not request the trial judge to appoint a lawyer for the accused. In presenting this motion the petitioner was asserting the right of an accused to have a reasonable opportunity to obtain a lawyer. He contends here that when the trial judge denied his motion for a continuance under the circumstances he, in effect, deprived the accused of a fair and reasonable chance to obtain a lawyer of his own choice. This, the petitioner asserts, constituted state action tantamount to denial of due process and, therefore, condemned by the Fourteenth Amendment to the Constitution of the United States.

In our consideration of the claims of the petitioner we must have in mind that aspect of the Fourteenth Amendment to the Constitution of the United States, which provides in part:

'* * * nor shall any State deprive any person of life, liberty, or property, without due process of law; * * *'.

Section 12, Declaration of Rights, Florida Constitution, F.S.A., contains substantially the same language.

Section 11, Declaration of Rights, Florida Constitution provides in part:

'In all criminal prosecutions, the accused shall have the right to * * *be heard by himself, or counsel, or both * * *'.

We interpolate in passing that we are not here confronted by that provision of the Sixth Amendment to the Constitution of the United States which provides that in criminal prosecutions the accused shall enjoy the right 'to have the Assistance of Counsel for his defence.' Under the Federal organic law it is essential...