Colon v. Hendry, 26602.

• Decision Date: 18 March 1969
• Docket Number: No. 26602.,26602.
• Citation: 408 F.2d 864
• Parties: Efrain Rivera COLON, Plaintiff-Appellant, v. E. A. "Doug" HENDRY, Sheriff, Collier County, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

408 F.2d 864 (1969)

Efrain Rivera COLON, Plaintiff-Appellant, v. E. A. "Doug" HENDRY, Sheriff, Collier County, Defendant-Appellee.

No. 26602.

United States Court of Appeals Fifth Circuit.

March 18, 1969.

Joseph C. Segor, Eleanor L. Schockett, Miami, Fla., for appellant.

George Vega, Jr., B. Clarke Nichols, Carroll, Vega, Brown & Nichols, Naples, Fla., for appellee.

Before PHILLIPS,^* BELL and MORGAN, Circuit Judges.

BELL, Circuit Judge:

The background of this case is a petition by a state prisoner for a federal writ of habeas corpus. The petition was filed on March 1, 1968. Although successful in that endeavor, petitioner now finds that the activities which resulted in the original misdemeanor charges against him have undergone a form of metamorphosis in the eyes of the state. He is now charged with a felony on the basis of the same activities. He doubtless wonders what manner of mistake he made in seeking his constitutional right to counsel.

Petitioner, a migrant farm worker, was convicted of assault and battery, Fla.Stat. § 784.03 (1967), F.S.A.; carrying a concealed weapon, Fla.Stat. § 790.01 (1967), F.S.A.; and improper exhibition of a dangerous weapon, Fla.Stat. § 790.10 (1967), F.S.A. He received a sentence of $500.00 or six months imprisonment on the first charge, $250.00 or six months imprisonment on the second and $100.00 or three months imprisonment on the third. The terms of imprisonment were to be served consecutively. Unable to pay the fines, he commenced serving the sentences totalling fifteen months on October 30, 1967.

On the hearing of his petition for the writ, it developed that petitioner spoke only a Spanish dialect and did not understand the proceedings in the Justice of the Peace Court where he was tried and did not waive his right to counsel. It also appeared that he was indigent. He was not advised of his right to counsel. On April 26, 1968, the district court granted the writ on condition that the state could refile charges against him within a time certain.

Rather than proceeding against petitioner on the same charges, however, the state then charged him with the felony of aggravated assault which carried a possible sentence of six years. Fla.Stat. § 784.04 (1967), F.S.A. This was done on May 1, 1968. Bond was set at $2,500.00.

On May 22, 1968, petitioner sought an order in the district court to stay the state prosecution and for discharge. He urged that the state did not refile charges as directed by the order of the district court in granting the writ, and also that he could not be subjected to a felony charge under the circumstances. The district court denied this motion on June 21, 1968 and this appeal followed. Meanwhile and finally, after release pending appeal was sought in this court, petitioner's bond was reduced to $250.00. He was released on bond on August 31, 1968 — ten months after commencing the service of the original sentences.

Two questions are presented. One, did the district court err in holding that its original order granting the writ was not violated or frustrated by charging petitioner with a felony. The original order was not explicit in respect to what might be done in the way of refiling charges. The district court, construing its own order and intention, ruled adversely to petitioner on this question. We cannot say that this construction was erroneous.¹

The second question is much more serious. Petitioner contends that the action of the state in charging him, on remand, with a felony, was an unwarranted inhibition on the use of the federal writ of habeas corpus. The district court also found this contention to be without merit. We disagree.

The problem presented has its genesis to some extent in an impasse existing between this court and the Supreme Court of Florida over the right to counsel. This court has extended the Sixth Amendment right to counsel to certain misdemeanor cases including cases involving the misdemeanor type charges originally involved here. Harvey v. Mississippi, 5 Cir., 1965, 340 F.2d 263; McDonald v. Moore, 5 Cir., 1965, 353 F. 2d 106. The Florida Supreme Court does not so construe the Sixth Amendment. Fish v. State, 159 So.2d 866 (Fla.S.Ct., 1964); Watkins v. Morris, 179 So.2d 348 (Fla.S.Ct., 1964); Taylor v. Warden of Orange County Prison Farm, 193 So. 2d 606 (Fla.S.Ct., 1967).

The Sheriff's position here, and by indirection that of the state, is that the Justice of the Peace was unable to appoint counsel in his court. Moreover, that court was unable to provide a jury trial, and normally charges such as those pending against petitioner would be transferred to the county court for jury trial. Nevertheless, a transfer even to the county court would be of no avail to petitioner since the sheriff takes the further position that the county court could not appoint counsel for an indigent defendant. Thus, the sheriff argues, it was necessary to charge petitioner with a felony so as to make appointed counsel available to him through the Florida Public Defender system.

We are not told why it would be impossible for the Justice of Peace or the county court to appoint counsel to defend petitioner on the misdemeanor charges. Traditionally a court may appoint its officers, members of the bar, to defend an indigent person. That question, nevertheless, is not presented to...