Fretwell v. Wainwright

• Citation: 246 So.2d 132
• Decision Date: 26 March 1971
• Docket Number: No. 69--804,69--804
• Parties: Milton Edward FRETWELL, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
• Court: Court of Appeal of Florida (US)

Page 132

246 So.2d 132

Milton Edward FRETWELL, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.

No. 69--804.

District Court of Appeal of Florida, Fourth District.

March 26, 1971.

Robert W. Lee, Orlando, for petitioner.

Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for respondent.

McCAIN, DAVID L., Associate Judge.

Petitioner Milton Fretwell, in proper person, filed in this court his petition for writ of habeas corpus, alleging that, by state action, he had been deprived of his right to appeal his conviction for robbery. We issued the rule to show cause directing the respondent custodian Wainwright to show cause why the petition should not be granted. Respondent has now filed his response to the rule, and the matter is before us for further proceedings.

The instant case, #69--804, represents petitioner Fretwell's third attempt to persuade this court to hear his cause on its merits. On the motion of respondent Wainwright, we have incorporated the records of two preceding appeals brought by petitioner, Cases #450 and #69--179, into the record of this cause, and will consider the records in those cases as being filed herein. The record facts set out below have been gleaned from the three cases considered together.

Petitioner's troubles began when, after his arrest and conviction in Volusia County for attempted robbery, he was immediately transported to Orange County, where by information filed on August 11, 1965, he was charged with robbery. It appearing that petitioner was insolvent, a representative of the office of the public defender was appointed to represent him, and at his arraignment on August 12, 1965, petitioner pleaded not guilty to the robbery charge.

On September 15, 1965, after a jury trial was afforded him, petitioner was adjudged guilty of the crime of robbery and sentenced to 40 years imprisonment in the state prison.

Timely notice of appeal was filed on October 13, 1965, and amended on November 2, 1965, thus initiating Case #450. Then, on December 16, 1965, the assistant public defender handling the case filed his motion to withdraw from further representation of defendant, alleging that the appeal was frivolous. On December 21, this court sua sponte quashed the appeal, citing Carr v. State, Fla.App.1965, 180 So.2d 381.

Following this disappointment, petitioner employed a series of futile legal maneuvers in the hope of persuading Some court to hear the merits of his case. On April 27, 1966, his petition for writ of habeas corpus was denied by the Supreme Court of Florida on the ground that he was not entitled to attack the validity of a consecutive sentence he had not yet begun to serve (at that time he was still serving a sentence on his Volusia County conviction for attempted robbery), Fretwell v. Wainwright, Fla.1966, 185 So.2d 701. A petition for rehearing was also denied.

A petition for writ of habeas corpus brought by petitioner in the U.S. District Court for the Middle District of Florida, was denied on the ground that petitioner had not yet exhausted his state remedies; to wit, a proceeding under Rule 1.850, Cr.RP, 33 F.S.A.

Taking the hint of the federal court, petitioner next brought a Rule 1.850 proceeding which was summarily denied on the ground that petitioner was merely attempting to harass the courts. On appeal here (#69--179) we affirmed (Fretwell v. State, Fla.App.1969, 229 So.2d 265) without prejudice to the right of petitioner to seek delayed appellate review by writ of habeas corpus in this court as authorized under Hollingshead v. Wainwright, Fla.1967, 194 So.2d 577. We also cited Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; Powe v. State, Fla.1968, 216 So.2d 446; and Jackson v. State, Fla.App.1969, 227 So.2d 354. Petitioner has now taken the action we suggested in #69--179, and so we proceed to the merits of his contention that he has been deprived of his right of direct appeal by state action.

It is established beyond question that an indigent defendant in a felony trial is constitutionally entitled to representation by counsel on direct appeal from his conviction. Anders v. California, supra; Douglas v. California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. Such right has been retroactively applied. Pate v. Holman, 5 Cir. 1965, 341 F.2d 764; Baggett v. Wainwright, Fla.1969, 229 So.2d 239; Schwander v. United States, 5 Cir. 1967, 386 F.2d 20; and Merkel v. Beto, 5 Cir. 1968, 387 F.2d 854.

The propriety of withdrawal of court-appointed counsel on appeal was considered in Anders, supra, and the Supreme Court reached the following conclusion:

'* * * if counsel finds his (defendant'...