Green v. City of Tampa
| Decision Date | 22 December 1971 |
| Docket Number | No. 70-126 Civ. T.,70-126 Civ. T. |
| Citation | 335 F. Supp. 293 |
| Parties | Luvernia GREEN a/k/a Laverne Greene et al., Plaintiffs, v. CITY OF TAMPA, a Florida Municipal Corporation, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Andrew J. Mirabole, Law, Inc. of Hillsborough County, Tampa, Fla., for plaintiffs.
Wm. Reece Smith, Jr., Joe H. Mount, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for defendants.
This is a civil rights action based upon 42 U.S.C. § 1983. Plaintiffs are seeking declaratory and injunctive relief relating to the requirements of the United States Constitution regarding the rights of indigent Municipal Court defendants to court appointed counsel. The basis of federal jurisdiction is 28 U.S.C. §§ 1343 and 2201.
The individual plaintiffs are persons who were charged with offenses in the Tampa Municipal Court, and who were found guilty of said offenses. Findings of fact relative to the precise position occupied by some of the individual plaintiffs have been made by the Court in considering prayers for habeas corpus relief made by the individual plaintiffs.1 The Court previously ruled that this action is maintainable as a class action and defined the class to be all indigent persons who in the future will be charged with an offense in the Tampa Municipal Court and who will not be advised by the city judges of their constitutional right to appointed counsel.2
The defendants are the City of Tampa, a municipal corporation, and the Municipal Court judges of the City of Tampa. There are three Municipal Court Judges of the City of Tampa. They are Judge Bob Johnson, Judge Charles Scruggs, and Judge John D. Menas.
This case had been noticed for pretrial conference and non-jury trial. The parties filed a pretrial stipulation as a result of which the factual issues have been resolved and the issues of law have been simplified. The issues of law have been fully briefed by the parties, and the Court has heard arguments of counsel.
In Exhibit Eight attached to their pretrial stipulation, the parties state that no issues of fact remain to be litigated. In Exhibit Four plaintiffs list their exhibits to be offered as those which were attached to the complaint. Defendants state that they have no exhibits. In Exhibit Five the parties state that they have no witnesses. In Exhibit Six the practices of each of the Municipal Judges in the City of Tampa is described as follows:
The parties further stipulated that substantially all of the municipal ordinances of the City of Tampa carry with them a potential jail sentence of six months.
This case is before the Court due to a conflict in decisions of the courts of the State of Florida and the United States Court of Appeals for the Fifth Circuit.
The Fifth Circuit Court of Appeals has definitively held that in criminal cases in which an accused is faced with a possible maximum sentence of ninety (90) days in jail, or a possible maximum fine of $500.00, the accused has the right to be represented by counsel, the right to be advised of his right to counsel, and if indigent, the right to court appointed counsel. Alvis v. Kimbrough, 446 F.2d 548 (5 Cir. 1971); Wooley v. Consolidated City of Jacksonville, 433 F.2d 980 (5 Cir. 1970); Mathews v. Florida, 422 F. 2d 1046 (5 Cir. 1970); Bohr v. Purdy, 412 F.2d 321 (5 Cir. 1969); James v. Headley, 410 F.2d 325 (5 Cir. 1969); Colon v. Hendry, 408 F.2d 864 (5 Cir. 1969); Boyer v. City of Orlando, 402 F.2d 966 (5 Cir. 1968); Goslin v. Thomas, 400 F.2d 594 (5 Cir. 1968); McDonald v. Moore, 353 F.2d 106 (5 Cir. 1965); Harvey v. Mississippi, 340 F.2d 263 (5 Cir. 1965). Federal District Courts in the State of Florida have adhered to these decisions, and where appropriate have granted habeas corpus relief. Mitchell v. Wainwright, D.C., 308 F. Supp. 436; Bramlett v. Peterson, 307 F.Supp. 1311 (M.D.Fla.1969); Rutledge v. City of Miami, 267 F.Supp. 885 (S.D. Fla.1967). The experiences of the United States District Court for the Middle District of Florida, Jacksonville Division, as to one county in that division are discussed in Bramlett at pp. 1319-1320. Many other lower court decisions, both state and federal in accord with the position of the Fifth Circuit Court of Appeals decisions are collected in Beck v. Winters, 407 F.2d 125 (8 Cir. 1969).
In the Tampa Division of the Middle District of Florida, there have been numerous cases other than Mitchell v. Wainwright, supra, in which habeas corpus relief was granted based upon the Fifth Circuit cases cited above. Gaston v. Genung, No. 71-456 Civ.T. (habeas corpus relief granted by order entered November 8, 1971); Smith v. Underhill, No. 71-451 Civ.T. (respondent stipulated to release petitioner, action dismissed by order entered October 27, 1971); Bryant v. Weitzenfeld, No. 71-310 Civ.T. (habeas corpus relief granted by order entered August 2, 1971); McKnight v. Wainwright, No. 71-146 Civ.T. (habeas corpus relief granted by order entered March 4, 1971); Gaston v. Genung, No. 71-7 Civ.T. (habeas corpus relief granted by order entered March 24, 1971).
None of the above cited cases involved convictions in Municipal Court in the City of Tampa. The Court has granted habeas corpus relief to the named plaintiffs herein, and to members of the class who the named plaintiffs represent. In addition, the Court has been confronted with the precise right to counsel issue evolving from convictions in Municipal Court in the City of Tampa in several other cases. Sparrow v. Wainwright, No. 71-118 Civ.T. (habeas corpus relief granted by order entered May 26, 1971); Brazell v. Hunter, No. 70-161 Civ.T. (habeas corpus relief granted by order entered May 14, 1970). Gause v. Hunter, No. 70-86 Civ.T. (respondent stipulated to release petitioner, action dismissed by order entered March 20, 1970); Davis v. Littleton, No. 70-43 Civ.T. (respondent stipulated to release petitioner, action dismissed by order entered March 6, 1970).
Against this overwhelming weight of authority to the contrary, the courts of the State of Florida have steadfastly held that the right to be advised of the right to counsel, and the right of court appointed counsel for indigent accused persons delineated by the Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), apply only when the accused is faced with a possible maximum sentence of six months in jail. Argersinger v. Hamlin, 236 So.2d 442 (Fla.1970); Watkins v. Morris, 179 So.2d 348 (Fla.1965).
Both the Fifth Circuit Court of Appeals and the Florida Supreme Court have recognized the distinction between their respective holdings. Colon v. Hendry, supra, at p. 865; Watkins v. Morris, supra, at p. 349. When there is a conflict between the decisions of courts of the United States, and decisions of courts of a state, there can be no question as to the prevailing authority.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."3
It is apparent that the practices of each of the Municipal Court Judges in the City of Tampa fall short of the requirements set down by the Fifth Circuit Court of Appeals in the cases discussed above. Judge Bob Johnson advises indigents of their right to court appointed counsel only if they are charged with violations with a potential jail sentence in excess of six months. He appoints counsel for such persons when requested. Judge Charles Scruggs advises indigent persons individually of their right to counsel only if he anticipates that the charge, if proven, may result in a sentence to jail of more than 30 days. He appoints counsel under such circumstances only when requested to do so. The practices of Judge Menas are not clear from the stipulated facts, but it does appear that he advises defendants individually of rights in serious cases only. The meaning of serious cases is not set out.
The parties have stipulated that the issues of law are as set out below.
I. When must defendant Municipal Court Judges advise indigent Municipal Court Defendants charged with violations of Florida law or of a municipal ordinance, that they are entitled to court appointed counsel?
The principles enunciated by the Supreme Court of the United States in Gideon v. Wainwright, supra, apply in every case in which crimes charged carry possible penalties as great as ninety...
To continue reading
Request your trial
-
Doe v. County of Lake, Indiana
...cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L. Ed.2d 147 (1972); Javits v. Stevens, 382 F.Supp. 131 (S.D.N.Y.1974); Green v. City of Tampa, 335 F.Supp. 293 (M. D.Fla.1971); Bramlett v. Peterson, supra. In the present case, plaintiffs seek no money damages from these particular defendants. ......