Dykes v. State

• Decision Date: 10 March 1964
• Docket Number: No. E-272,E-272
• Citation: 162 So.2d 675
• Parties: Glenn DYKES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 675

162 So.2d 675

Glenn DYKES, Appellant, v. STATE of Florida, Appellee.

No. E-272.

District Court of Appeal of Florida, First District.

March 10, 1964.

Rehearing Denied April 3, 1964.

Glenn Dykes in pro. per.

Richard W. Ervin, Atty. Gen., and A. G. Spicola, Jr., Asst. Atty. Gen., for appellee.

RAWLS, Judge.

On about December 1, 1959 appellant Glenn Dykes was charged by an information in the Court of Record of Escambia County with eleven counts of grand larceny and breaking and entering, each of which constitutes a felony under our law. On said date Dykes pleaded guilty to each count, was adjudged guilty by the Court and was sentenced to imprisonment in the state prison for a long period of time.

On April 22, 1963, Dykes filed in the Court of Record his motion to vacate and set aside said judgment and sentence pursuant to Florida Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, alleging that at the time he pleaded guilty and was sentenced: 1. he was not represented by counsel and was without funds to provide counsel; 2. counsel would have materially aided him in the cause; and 3. he never waived an offer of counsel nor was such offer ever made. In said motion he then reaches the conclusion that his conviction 'was made and imposed in violation of the Constitution of the United States of America as clearly set forth by the United States Supreme Court in the case of Gideon v. Wainwright * * *' ¹ The record of the trial proceedings reflects: '* * * Now on this day came in person Glenn Dykes in open court and upon inquiry by the court to him as to whether he had counsel or desired counel, the defendant announced that he was without counsel and did not desire same.' The trial court found from its records (as quoted above) that Dykes had waived his right to counsel and denied any relief. Dykes appealed.

In the case of King v. State ² Chief Judge Smith in a scholarly opinion explored the identical question here presented, and set forth what we determine to be the controlling principles of law, viz.:

'Of course, the defendant who, without counsel, enters a plea of guilty or acquiesces in a trial resulting in his conviction, and later makes a collateral attack upon that judgment, faces a presumption that such judgment was regular. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). In a right-to-counsel case, the burden rests upon the defendant in his collateral attack upon the judgment to rebut this presumption by first alleging and then proving by a preponderance of the evidence (1) that he was not represented by counsel; (2) that he was financially unable to employ counsel; and (3) that he did not competently and intelligently waive his right to counsel * * *. On the other hand, if the record shows or if there is evidence which shows that the court offered counsel to defendant, then the burden rests upon the defendant to allege and prove that he did not intelligently and understandingly reject such offer. * * *'

Dykes has wholly and completely failed to allege facts that would upset the presumption of the regularity of his conviction.

A petition to vacate a sentence must set forth facts as distinguished from mere conclusions and a petitioner's allegations supported only by his own assertions are not sufficient. ³ Here, Dykes alleges that he was not offered counsel and that he did not waive counsel. The record states that he told the court that he did not desire counsel. Dykes's petition clearly presents to this court alleged facts which are contradicted by the records of the trial court and, therefore, are not adequate for the purposes of a collateral attack.

Johnson v. Zerbst ⁴ is often cited in waiver-of-counsel cases and is liberally quoted by those seeking relief in such proceedings. We find the foregoing fundamental controlling principle of law enunciated in the Johnson case by Justice Black on pages 468 and 469 of 304 U.S., on page 1025, of 58 S.Ct., 82 L.Ed. 1461:

'It must be remembered, however, that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of Counsel. * * *' [Emphasis supplied.]

Defendant Dykes has not begun to meet the burden so imposed upon him in this collateral attack.

Our conclusion here in founded to a great extent upon the recent decision of the United States Supreme Court in the Sanders case. ⁵ There, Sanders, filed two motions collaterally attacking his judgment of conviction. The first motion filed by Sanders alleged: (1) the indictment was invalid, (2) appellant was denied adequate assistance of counsel as guaranteed by the Sixth Amendment, (3) the sentencing court had allowed the appellant to be intimidated and coerced into entering a plea without counsel. The record revealed that at the time of his trial and in response to inquiries of the trial judge, Sanders waived assistance of counsel and then pleaded guilty to the charge in the information. Subsequently, on the collateral attack the trial court found that the motion 'sets forth nothing but unsupported charges, which are completely refuted by the files and records of this case. Since the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, no hearing on the motion is necessary.' Approximately eight months later the prisoner Sanders filed a second motion alleging therein that at the time of conviction and sentence he had been incompetent as a result of narcotics, and that narcotics had been administered to him by attendants at the jail because of his being an addict, all of which made him unable to competently waive counsel. In holding that the sentencing court should have granted a hearing on the second motion, the Supreme Court of the United Stated held as a matter of law that 'Petitioner's first motion under § 2255 was denied because it stated only bald legal conclusions with no supporting factual allegations. The court had the power to deny the motion on this ground, see Wilkins v. United States, 103 U.S.App.D.C. 322, 258 F.2d 416 [C.A.D.C. Cir. 1958], although the better course might have been to direct petitioner to amend his motion, see Stephens v. United States, 246 F.2d 607 (C.A. 10th Cir., 1957) (per curiam). * * * The crucial allegation of the second motion was that petitioner's alleged mental incompetency was the result of administration of narcotic drugs during the period petitioner was held in the Sacramento County Jail pending trial in the instant case. * * *' [Emphasis supplied.] Therefore, the law of the case as enunciated in Sanders pertains to the entertainment of successive motions by the sentencing court holding in effect that a hearing is not res adjudicata as to all matters that could have been raised by a petitioner, and that statements setting forth bald legal conclusions with no supporting factual allegations will not require a full scale hearing.

A proceeding under Criminal Rule No. 1 ⁶ is strictly a collateral attack upon the judgment of conviction in a criminal case. The movant in each instance is necessarily confronted with the record of the proceedings upon the trial resulting in the judgment assailed and where, as in this case, such record reflects that he waived the right to have counsel appointed to represent him on the trial, the motion under Rule 1 must contain allegations of fact which if true would entitle him to a new trial because of lack of due process or the deprivation of some constitutional right. Mere citation of the Gideon decision and the bald statement that movant was deprived of counsel, as is the sum and substance of the premise upon which the instant motion to vacate the judgment is based, is purely and simply a conclusion of law and presents no fact sufficient to contradict the record of the trial reflecting that the movant did in fact waive the right to court-appointed counsel.

As this record stands before this court upon review, it is evident that Dykes states that he did not waive counsel, whereas the record states that he did waive counsel. Such a petition is not adequate to cause a reversal of the finding of the trial judge.

Affirmed.

STURGIS, C. J., concurs.

CARROLL, DONALD K., J., dissents.

CARROLL, DONALD K., Judge (dissenting).

I find myself unable to concur in the majority opinion for the reason that I feel that it fails to apply the fundamental principle recognized by nearly all state and federal courts that an accused cannot be held to have waived his constitutional right to counsel unless it is shown that he competently and intelligently waived that right.

As I read the record in this appeal, there is absolutely nothing therein to show that Dykes competently and intelligently waived his right to counsel. All that the record shows, and all that the trial court and this court can properly consider on this question, is the following statement in the record:

'Now on this day came in person the defendant Glenn Dykes into open court and upon inquiry by the Court to him as to whether he had counsel or desired counsel, the defendant announced that he was without counsel and did not desire the same. Having been furnished a copy of the information, the said defendant was duly arraigned and entered his plea of guilty * * *.'

Without reciting the taking of any testimony, the record goes on to show that Dykes was then forthwith adjudged by the court to be guilty of all eleven counts of the information and sentenced on six of the counts to a total of tweleve years imprisonment at hard labor in the State Prison. The remaining five counts were placed...