Keur v. State
| Decision Date | 20 December 1963 |
| Docket Number | No. 4237,4237 |
| Citation | 160 So.2d 546 |
| Parties | Harold Richard KEUR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Harold Richard Keur, in pro. per.
Richard W. Ervin, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
Appellant Keur appeals from an order denying relief under Criminal Procedure Rule No. 1, F.S.A. ch. 924 App. We find error and reverse.
On October 12, 1961, informations were filed charging Keur with grand larceny and embezzlement. On the same day, the defendant appeared before the court without benefit of counsel, was arraigned, and pleaded guilty to each charge. The court accepted the pleas and adjudged the defendant guilty. A pre-sentence investigation was ordered. Subsequently, the defendant again appeared before the court without benefit of counsel, and the court passed sentence for each of the offenses. The record is silent as to whether or not the defendant was able to employ counsel to represent him, whether or not the court advised the defendant of his constitutional right to the assistance of counsel or offered to appoint counsel for him, and whether or not the defendant competently and intelligencly waived his constitutional right to counsel.
On May 1, 1963, Keur filed a motion in each cause to vacate the judgment and sentence. The motions were identical, alleging under oath that the defendant did not have an attorney representing him at any time during the proceedings against him; that he was not advised that he could have an attorney; that no offer was made to appoint an attorney for him; and that he was then and now without funds to employ an attorney. Other allegations, which are not here material, pertained to Keur's reasons for entering plaes of guilty.
The court directed a letter to Keur, propounding certain questions regarding the defendant's financial status in late 1961 and early 1962. In response, Keur filed what he styled 'addenda' to his motions to vacate, stating under oath that he was last employed in January of 1962 at a salary of $81 per week; that his wife was not employed at that time; that he had a $5,000 life insurance policy which in June of 1961 had been encumbered by a loan of its full cash value and which had since lapsed; that when sentenced in January of 1962 he was indebted in the approximate sum of $6,800 and had no assets; that his salary at that time had been barely enough to sustain and provide for his family; that for several months prior to December of 1961 he had received no income; and that his mother-in-law had paid the premium for the bond which secured his release until the time of sentence. Keur also went into further detail upon the allegedly involuntary nature of his pleas.
The court then addressed a second interrogatory letter, to which the prisoner replied by a second sworn 'addendum' to his motions. He stated that his wife had sold almost all of her property and assets, including personal possessions and household goods, and turned the proceeds over to the complaining witness against the defendant. Keur concluded this response with specific requests that he be present at the hearing and that an attorney be appointed to represent him there.
The court entered an order consolidating the two motions for relief and denying both without a hearing. The order recites:
'* * * (I)t occurring to the Court that at the time Petitioner appeared before the Court the Petitioner was advised of his right to counsel and that Petitioner waived representation by counsel, that Petitioner was advised of his right to trial by Jury and that Petitioner waived right to trial by Jury. * * *'
The order then recites in some detail that Keur had admitted his guilt to several officers of the court; that the court had determined and found that the defendant had sufficient intelligence to comprehend the nature of the charges against him, the seriousness of these charges, and the consequences of pleading guilty; and that, since defendant had entered pleas of guilty, the decision in Gideon v. Wainwright 1 was not applicable. The court then made findings to the effect that the defendant had embezzled goods of the value of $10,000 and restored only $4,000; that prior to his arrest he was employed; and that his employment continued for approximately one month after his arrest and he earned $466.56 in that period. By virtue of the foregoing findings, the court concluded that Keur was not indigent so as to require the appointment of counsel to represent him at the arraignment.
Upon the institution of this appeal, Keur filed an oath of insolvency, tracing the statutory language, and a motion for appointment of counsel on appeal. Again without a hearing, the court entered an order refusing to adjudge the defendant insolvent and denying the motion for appointment of counsel on appeal. This denial of the motion for appointment of counsel on appeal was a part of the appeal process and the entertainment of that motion was within the power of the trial court subject to the control of the Appellate Court by motion. No such motion was filed and, hence, this court has not and does not rule on that motion. Fla.App. Rule 6.61, 31 F.S.A. For this reason, Keur appears here without counsel.
With regard to the court's 'findings' 2 to the effect that Keur was advised of his right to counsel and his right to trial by jury, and that he waived such rights, suffice it to say that these findings were made by the court upon looking outside of the files and record of the case; such a determination on facts dehors the record cannot from the basis for a summary denial of a motion for relief under Criminal Procedure Rule No. 1. An examination of the motions, and of the files and records in each of these cases, does not conclusively show that Keur was entitled to no relief. Thus, under the requirements of Criminal Procedure Rule No. 1, the court should have caused notice of the motions to be served upon the prosecuting attorney of the court, granted a prompt hearing thereon, determined the issuse, and made findings of fact and conclusions of law. King v. State, Fla.App.1963, 157 So.2d 440.
We turn now to the question of Keur's inslovency. Neither the Act creating the office of public defender nor the other statutes pertaining to indigent defendants defines insolvency or establishes guide lines for determination of the question. However, § 924.17, Florida Statutes, F.S.A., does set forth a form of oath; and an oath in the statutory language is sufficient if true, to establish insolvency. As stated in the statute, upon the filing of such an oath or affidavit, the court shall either enter an order of insolvency or require further evidence and then grant or deny an order of insolvency, according to whether the court deems the inslovency of the defendant to be satisfactorily established or not. The fact that this statute applies specifically to criminal appeal cases does not detract from its persuasiveness on the present question of how inslovency may be determined.
There is nothing new in our jurisprudence in making the processes of courts available to insolvent defendants without requiring the payment of costs or fees. The Statute of Westminster, 1494, 2 Hen. 7, ch. 12, so provided; it also provided for the appointment of 'learned counsel and attornies' to serve without reward. Except for the matter of attorneys, the custiom thus established has been continued by statutes in Florida, and the decisions under these statutes should serve as a guide in determining whether or not a defendant is financially able to employ counsel to represent him.
In Florida, as in most of the other jurisdictions, the so-called 'discretion test' is used to determine the fact of insolvency. This test contemplates broad discretionary power. However, certain principles have been established to control...
To continue reading
Request your trial
-
Bramlett v. Peterson
...Cal.1966); In re Trevithick, 260 F. Supp. 852, 854 (D.S.D.1966); Sapio v. State, 223 So.2d 759 (3d D.C.A.Fla. 1966); Keur v. State, 160 So.2d 546 (2d D.C.A.Fla.1963). See also Samuel v. United States, 420 F.2d 371, No. 27,504 (5th Cir., 1969) (truck driver without money or property or depen......
-
U.S. v. Zelenka
...solvency for purposes of determining whether he is an `indigent person' entitled to appointment of counsel"); Keur v. State, 160 So.2d 546, 549 (Fla.Dist.Ct.App.1963) (holding that the appropriate inquiry into insolvency "is not whether the defendant's supposed friends or spouse or relation......
-
Sanders v. State
...needing 'opportunity to contact relatives in Spain relative to employing counsel,' Sanders made no claim of poverty. But see Keur v. State, Fla., 160 So.2d 546. The appellate record was filed here April 3, Authorities Cited The action of the United States Supreme Court here coincides with t......
-
Baldwin v. State
...his assets. See Knapp v. Hardy, 111 Ariz. 107, 523 P.2d 1308 (1974); Sapio v. State, 223 So.2d 759, 761 (Fla.App.1969); Keur v. State, 160 So.2d 546 (Fla.App.1963); People v. Gustavson, 131 Ill.App.2d 887, 269 N.E.2d 517 (1971); Schmidt v. Uhlenhopp, 258 Iowa 771, 140 N.W.2d 118 (1966); Sta......