Lawson v. State

• Decision Date: 16 May 1975
• Docket Number: No. 74-1674,74-1674
• Parties: Larry Rufus LAWSON, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 522

312 So.2d 522

Larry Rufus LAWSON, Petitioner, v. STATE of Florida, Respondent.

No. 74-1674.

District Court of Appeal of Florida, Fourth District.

May 16, 1975.

James M. Russ, Orlando, for petitioner.

Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for respondent.

WALDEN, Judge.

Having considered the merits, we deny the Petition for Writ of Certiorari. It sought a review of certain orders of the Circuit Court.

By way of essential background, defendant was jailed pursuant to a judgment and sentence entered in Orlando Municipal Court. In 1970 he escaped. Thereafter he plead guilty to common law escape, a misdemeanor, and in 1971 was sentenced to the maximum imprisonment authorized by law. In 1972 the U.S. Supreme Court decided Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Defendant obtained a reversal of his original judgment and sentence because he--as an indigent--had been denied counsel, Argersinger v. Hamlin, Supra. Defendant now seeks certiorari to obtain a reversal of his escape conviction and sentence. He argues that since Argersinger is retroactive, (see Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971) defining the reach of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)), and since the original municipal court judgment has been held void for failure to comply with Argersinger's directives, the escape conviction is void because it is based on a void judgment and sentence. We disagree.

The question involved, simply, is whether an escape conviction based on incarceration under an uncounseled conviction can stand.

We are not unaware of cases in which evidence of uncounseled convictions was disallowed in subsequent actions; Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), in which it was deemed impermissible to utilize an uncounseled conviction to prove recidivism; Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), in which uncounseled convictions could not be used for impeachment; U.S. v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), in which uncounseled convictions could not be taken into consideration for sentencing purposes; and State v. Davis, 203 S.2d 160 (Fla.1967), in which an uncounseled prior conviction could not be used to support a recidivist conviction thereafter, when Davis was again convicted of a felony. In addition, defendant has urged that the instant case is analogous to those cases where it was held the charge of unlawfully resisting arrest can only be based on a lawful arrest or service of process. Licata v. State, 156 Fla. 692, 24 So.2d 98 (1945); Jackson v. State, 87 Fla. 262, 99 So. 548 (1924); English v. State, 293 So.2d 105 (4th D.C.A.Fla.1974); In the Interest of E.A.S. v. State, 291 So.2d 61 (1st D.C.A.Fla.1974); Rosenberg v. State, 264 So.2d 68 (4th D.C.A.Fla.1972); Kirby v. State, 217 So.2d 619 (4th D.C.A.Fla.1969).

However, the authorities are distinguishable because of the limited nature of the self-help theory. It is not the validity of the conviction that is crucial, it is the fact that defendant was validly incarcerated under a presumably valid conviction and sentence. Rothrock v. Wainwright, 286 So.2d 240 (4th D.C.A.Fla.1973).

Though resisting arrest is proper when there are no grounds for the arrest, the cases so holding are distinguishable. Once under legal incarceration a defendant must only avail himself of help through the court system. In addition, these cases may be distinguished because, although self-help may be allowed if there are no grounds for an arrest--self-help is not allowed if the arresting officer had reason to believe there was probable cause to arrest, even though subsequent assessment would prove the resulting charge insupportable. In comparison defendant here was validly incarcerated and his escape cannot be justified even though his original conviction is thereafter reversed. In State ex rel Wilson v. Culver, 110 So.2d 674 (Fla.1959), the...