Dickens v. State, 4713

• Decision Date: 24 June 1964
• Docket Number: No. 4713,4713
• Citation: 165 So.2d 811
• Parties: Oliver DICKENS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 811

165 So.2d 811

Oliver DICKENS, Appellant, v. STATE of Florida, Appellee.

No. 4713.

District Court of Appeal of Florida, Second District.

June 24, 1964.

W. D. Frederick, Jr., Public Defender, and Joseph X. Dumond, Jr., Asst. Public Defender, Orlando, for appellant.

James W. Kynes, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

SMITH, Chief Judge.

On January 23, 1946, three informations were filed against Oliver Dickens, charging him in Case No. 29420 with breaking and entering with intent to commit a misdemeanor; in Case No. 29421 with another breaking and entering with intent to commit a misdemeanor; and in Case No. 29422 with breaking and entering with intent to commit a felony. Dickens was arraigned in each of these three cases on the same date the informations therein were filed. In each instance the entire record of the arraignment is as follows: 'Defendant was arraigned, entered a plea of guilty.' Thereupon the court adjudged the defendant guilty and imposed three sentences (totaling 20 years), to run consecutively.

In May of 1963 the prisoner filed pro se his sworn motion for post-conviction relief, pursuant to Criminal Procedure Rule No. 1 F.S.A. ch. 924 Appendix. In his motion, Dickens alleged that at the time of his trial he was 17 years of age; that his parents had no knowledge that he was being tried; that he appeared in court without the aid of an attorney (he stated that he was unable to pay one); and that he did not request the court to appoint an attorney because he did not know anything about the law and because the detective who arrested him told him to plead guilty ('* * * and after what he had done to me I did what he said * * *'). Dickens filed with his motion an affidavit of insolvency and requested that the court appoint counsel to represent him. From an order denying relief, the prisoner appeals. We reverse.

The procedure followed by the lower court in this cause was improper. The transcript of the record of the hearing below and the order denying relief disclose that the court caused a Notice of Hearing on the prisoner's motion to be given to the prisoner, but the court did not cause the prisoner to be produced at the hearing; nor did the court appoint counsel to represent the prisoner at the hearing. The fourth paragraph of Criminal Procedure Rule No. 1 provides that 'A court may entertain and determine such motion [to vacate judgment and sentence] without requiring the production of the prisoner at the hearing.' These words, standing alone, might be read so as to sustain the procedure followed by the court below. But a consideration of other well-known principles of law discloses otherwise.

As our Supreme Court has said, Criminal Procedure Rule No. 1 is copied almost verbatim from the federal code, 28 U.S.C.A. § 2255, and when the Florida courts are faced with questions regarding the application and interpretation of Rule No. 1, we should look to federal precedents and authorities as a guide. Roy v. Wainwright, Fla.1963, 151 So.2d 825, 828. A reference to federal court decisions concerning the above-quoted paragraph discloses that the court's discretion, as to whether or not the prisoner is to be produced at the hearing on his motion for post-conviction relief, is a discretion which must be exercised in the light of other applicable principles of law--including the requirements of due process. For example, if the motion fails to allege facts which, if true, would render the judgment and sentence void, then the court may rule on the question of law presented without the presence of the prisoner. Simmons v. United States, 10 Cir.1956, 230 F.2d 73; Burgett v. United States, 8 Cir.1956, 237 F.2d 247; Garcia v. United States, 9 Cir.1952, 197 F.2d 687. If upon hearing there are questions of fact to be resolved, as to which facts the prisoner has any personal knowledge, then the prisoner should be produced in order to testify. United States v. Nickerson, 7 Cir.1954, 211 F.2d 909; and see United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. Where evidence is to be heard at the hearing, even on facts with reference to which the prisoner has no knowledge, if the prisoner is not represented by counsel then fairness and justice--as well as due process--require that the prisoner be produced so he may confront all the witnesses, interrogate his own witnesses and cross-examine those of the state. Appointment of counsel may be an adequate alternative to the presence of the prisoner in this situation, if the prisoner would not be prejudiced through his absence and if he were not personally involved in the factual dispute to be resolved.

It must always be borne in mind that Rule No. 1 procedure must be adequate and effective, for, if it is not, the remedy of habeas corpus may be employed; and it is the duty of the court to make the remedy adequate and effective. Roy v. Wainwright, supra; and see particularly 111 U.Penn.L.Rev. 788, 'Processing a Motion Attacking Sentence Under Section 2255 of the Judicial Code.' We conclude that the lower court abused its discretion and committed error in conducting the hearing in this cause and taking the testimony of witnesses on the issues of fact (hereinafter noted) without the presence of the prisoner.

The transcript of the record of the hearing discloses that those present were the judge and the assistant county solicitor. After the judge called the case, ¹ he inquired of a then unknown woman if she wished to be heard. The woman identified herself as Maggie Cook, the grandmother of...