Hooks v. State, 41476
Decision Date | 20 October 1971 |
Docket Number | No. 41476,41476 |
Citation | 253 So.2d 424 |
Parties | Harold Raymond HOOKS, Petitioner, v. STATE of Florida, Respondent. |
Court | Florida Supreme Court |
Harold Raymond Hooks, in pro. per.
Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for respondent.
By petition for certiorari, we are asked to review a decision of the District Court of Appeal, Fourth District, (Hooks v. State, 250 So.2d 322), which allegedly conflicts with prior decisions of other District Courts of Appeal as well as this Court.
Petitioner, an indigent, was represented by the public defender during the trial and his appeal to the District Court of Appeal. He seeks counsel to represent him in this proceeding.
With his petition for writ of certiorari, the petitioner has filed a copy of the information charging him in two counts with the sale of L.S.D. and two counts charging him with the possession of L.S.D. Also, he has included a copy of the judgment and sentence and the pertinent portion of the transcript of record relating to the question raised in his petition. He also furnished copies of the briefs filed in the District Court of Appeal.
Petitioner filed a motion for which was denied without prejudice to reapply in the event this Court finds that it has jurisdiction. Petitioner then filed a second motion for immediate consideration of appointment of counsel. In the event counsel is not appointed under the second motion, petitioner requests that it be considered as an amended petition for writ of certiorari.
The thrust of his allegations in his second motion is the failure of the public defender to consult with him during the appellate proceedings in the District Court of Appeal. He says that a public defender should not conduct an ex parte appeal over the objections of the indigent he represents. He alleges that he does not have access to the decisions of the Florida court for the purpose of determining whether conflict exists.
Petitioner had a constitutional right to the assistance of counsel on his appeal to the District Court of Appeal from his judgment of conviction. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967).
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), holds that the United States Constitution, Fourteenth Amendment requires the appointment of an attorney to prosecute a First appeal from an indigent's criminal conviction after an attorney first appointed for him concludes that there is no merit to the appeal and so advises the Court by letter. In discussing the right of counsel to withdraw, the United States Supreme Court said:
(386 U.S. pp. 744--745, 87 S.Ct. p. 1400, 18 L.Ed.2d pp. 498--499).
The principles enunciated in Anders v. California, Supra, have been applied by the District Court of Appeal. Schuler v. State, 229 So.2d 667 (Fla.App.1st, 1969); Leone v. State, 233 So.2d 404 (Fla.App.2d, 1970); Daniels v. State, 233 So.2d 405 (Fla.App.2d, 1970).
Under our appellate procedure the District Court of Appeal grants a full appeal and considers every phase of the record. This is the First appeal within the concept of Anders v. California, Supra. On the other hand, the jurisdiction of this Court is limited, in the case Sub judice, to the sole question of whether the decision of the District Court of Appeal conflicts with some decision of another District Court of Appeal or of this Court. Fla.Const., art. V, § 4(2), F.S.A.
The petitioner has no absolute right to appointed counsel in presenting his petition for certiorari in the case Sub judice. The question in each proceeding of this nature before this Court should be whether, under the circumstances, the assistance of counsel is essential to accomplish a fair and thorough presentation of the petitioner's claims. Of course, doubts should be resolved in favor of the indigent petitioner...
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