Fitzpatrick v. Wainwright, 85-5154

Citation800 F.2d 1057
Decision Date30 September 1986
Docket NumberNo. 85-5154,85-5154
PartiesPeter R. FITZPATRICK, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Respondent-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellant.

Margaret Good, Asst. Public Defender, West Palm Beach, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, and ANDERSON, Circuit Judges, and ATKINS *, Senior District Judge.


ANDERSON, Circuit Judge:

Fitzpatrick was convicted in state court on four counts of selling unregistered securities,

four counts of fraud in connection with the sale of unregistered securities, and four counts of grand theft. These convictions were affirmed without opinion by the Florida Court of Appeals. Fitzpatrick filed a petition for a writ of habeas corpus in federal district court alleging that he was denied his right to assistance of counsel at trial and sentencing. Specifically, Fitzpatrick alleged that he was tried and sentenced pro se in the absence of a knowing and intelligent waiver, and that he was compelled to proceed without counsel in the absence of a determination that he could not afford an attorney. The United States Magistrate recommended denial of Fitzpatrick's petition concluding that Fitzpatrick knowingly and voluntarily chose to proceed pro se. The district court rejected the magistrate's conclusions of law and granted Fitzpatrick's petition for a writ of habeas corpus, noting that the state trial judge failed to hold an indigency hearing and failed to make sufficient inquiries as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and its progeny. Because we conclude that Fitzpatrick made a knowing, intelligent and voluntary decision to represent himself, we reverse the district court's decision.


Since the issue of whether a criminal defendant knowingly and voluntarily waives his right to counsel depends on the circumstances of each case, a detailed recitation of the facts is warranted here. On June 19, 1981, a fourteen-count information was filed charging Fitzpatrick with sales of unregistered securities, sales of securities by misrepresentation, schemes to defraud or fraudulent business practices, and grand theft. Fitzpatrick, accompanied by private counsel, Joel Weissman, surrendered in open court on November 3, 1981. Weissman continued to represent Fitzpatrick through his release upon bond and initial discovery proceedings. On December 11, 1981, however, Weissman announced that he intended to withdraw from the case because he could not get along nor communicate with Fitzpatrick. On December 16, 1981, Weissman appeared upon his motion to withdraw and stated that Fitzpatrick refused to agree to pay his fee and would not remain in contact with him. Weissman also informed the court that he and the prosecutor, Oliver Harris, wanted to get Fitzpatrick a public defender because Weissman did not believe Fitzpatrick could afford private counsel.

On January 4, 1982, another private attorney, Leon St. John, appeared and stated that he had met with Fitzpatrick and requested a postponement of the case to settle whether he would represent the defendant. On January 6, 1982, St. John requested another continuance noting the complexity of this particular case. He indicated that he would discuss the complexity of the case with Fitzpatrick in negotiating his fee. St. John also stated that Fitzpatrick promised payment within a week, although Fitzpatrick told St. John that Fitzpatrick had no liquid assets. On January 22, 1982, the prosecutor appeared alone at the calendar call and reported that he had spoken with both Fitzpatrick and St. John the previous day. The prosecutor stated that Fitzpatrick was trying to obtain the money to retain St. John and needed a further one-week continuance, which was granted. On January 29, 1982, Fitzpatrick appeared in court and requested a two-week continuance, stating that he was still trying to raise the money to hire St. John. On February 12, 1982, Fitzpatrick reported that St. John wanted a substantial amount up front, but that he was still negotiating with St. John and needed two more weeks. He also stated that if he did not have an attorney after two weeks, he would defend himself. On February 26, 1982, Fitzpatrick told the court that he was "close" to hiring an attorney. The trial judge, while Fitzpatrick was present, suggested that the case would be a "disaster" if Fitzpatrick conducted his own defense. Harris, the prosecutor, mentioned the possibility of a public defender. Also, on February 26, the trial court set a firm trial date with a calendar call on May 28, 1982.

On April 1, 1982, the prosecution filed a motion to compel Fitzpatrick to retain an attorney or proceed pro se. The basis for this motion was that Fitzpatrick was using his attempts to hire an attorney as a delay tactic. This motion was filed by an assistant state attorney, Marta Suarez-Murias, who had not been present at any of the previous status check hearings.

On April 13, 1982, another private attorney, Marc Goldstein, filed a notice of appearance on Fitzpatrick's behalf stating that Fitzpatrick told him that family money would be freed up soon. On April 19, 1982, Goldstein requested more time explaining that the case required a large retainer and that he and Fitzpatrick were still negotiating the fee. On April 26, 1982, Goldstein told the court that Fitzpatrick was expecting a transfer of funds and more time was needed. Fitzpatrick told the court he was trying to raise money "off stocks."

On May 3, 1982, Fitzpatrick told the court that he was speaking with another attorney, Dowling, and that he would either retain an attorney or proceed pro se. Fitzpatrick also asked about the prosecutor's (Oliver Harris') suggestion that Fitzpatrick get a court-appointed lawyer. The new prosecutor, Ms. Suarez-Murias, responded that she had never suggested that Fitzpatrick receive appointed counsel. Ms. Suarez-Murias asked the court to enter an order requiring Fitzpatrick to retain counsel or proceed pro se. The court ordered Fitzpatrick to retain counsel by May 28, 1982, or represent himself, noting that trial of the case had been continued repeatedly so that Fitzpatrick could retain private counsel. The court also stated, however, that between May 3 and May 28 it would entertain a motion to consider Fitzpatrick's indigency for the purpose of deciding whether Fitzpatrick was entitled to appointed counsel.

On May 28, 1982, the court held another hearing on the issue of Fitzpatrick's representation. The trial judge asked Fitzpatrick, "Do you think you may be entitled to represent--are you indigent?" Fitzpatrick responded, "No, your honor, and I don't want a public defender at this point. I will comply with the order." Fitzpatrick requested more time to prepare. The court set the trial date for the week of July 12, 1982.

Toward the end of the May 28 hearing, the following exchange occurred:

The Court: Do you feel we need a signed waiver of counsel in this case?

Ms. Suarez-Murias: I think we should, Your Honor. I would hate to have--

The Court: Do you have a form?

You are entitled to be represented. Of course, if you cannot afford an attorney, we would appoint one for you; do you understand that?

Mr. Fitzpatrick: I understand.

The Court: There is no--

Ms. Suarez-Murias: Mr. Fitzpatrick is aware he has a right to claim indigency and raise that as an issue. You are not claiming indigency, and have no intention?

Mr. Fitzpatrick: No.

The Court: She's going to have something for you to sign.

Thank you.

Mr. Fitzpatrick: I am just signing that I agree that I am waiving right to counsel.

The waiver signed by Fitzpatrick in open court on May 28, 1982, includes, in part, the following advice:

If I am financially unable to obtain counsel, I have the RIGHT to Court-appointed counsel to represent me at First Appearance, Arraignment, and all subsequent proceedings....

Later, on July 12, 1982, at a motion to suppress hearing prior to trial, Fitzpatrick was again questioned at length about his desire for an attorney.

By Ms. Suarez-Murias:

Q Mr. Fitzpatrick, do you understand that the constitution of this country, of this state, provides that a defendant has the right to counsel in any and all criminal proceedings?

A Yes, I do.

Q You understand, also, sir, that in the event of an indigent defendant, as A Yes, I understand that indigent defendants can obtain counsel if they feel they need it.

defined by state law, the Courts have and continue to appoint counsel, whether it be the public defender or court appointed counsel to represent indigent defendants.

I might add, up to this point, or until this matter here, Your Honor, I felt that I did not require counsel because it was not that complex and a theft and fraud case, Your Honor, you either took the money or you did not.

If you feel you got records to indicate where the money went, how it was spent, then I think that I've got no difficulty to represent to the jury or a judge up to this point.

Your Honor, okay, now, as far as there have been no complexities until what is involved in this motion this morning so, at this point in time, I would say that I am aware that you can have counsel and if you feel you need it.

Up until this point I have not felt that I needed it.

Q Mr. Fitzpatrick, so the record can be crystal clear, are you now saying that you need counsel?

A No, I am not saying I need counsel.

Q So, you fully understand your rights to have an attorney, and knowing that you waive that?

A Yes, at ten eighteen, July 12th, I waive that right.

Q All right, sir, are you then implying, and forgive me--

A I am not implying anything.

Q Being--

The Court: Let her finish.

By Ms. Suarez-Murias:

Q Mr....

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