Leeds v. State

• Decision Date: 01 June 1966
• Docket Number: No. 6557,6557
• Citation: 187 So.2d 77
• Parties: Garland LEEDS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 77

187 So.2d 77

Garland LEEDS, Appellant, v. STATE of Florida, Appellee.

No. 6557.

District Court of Appeal of Florida, Second District.

June 1, 1966.

Lee Roy Horton, Public Defender, Lake Wales, and Robert G. Stokes, Asst. Public Defender, Lakeland, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

PER CURIAM.

This is a timely appeal by a defendant from an order denying his motion for post conviction relief under Rule 1, F.S.A. ch. 924 Appendix. The grounds of the motion were that the record failed to show a waiver of counsel or a signed waiver of the right to a jury trial. The trial judge denied the motion on the ground that the record reflected a waiver. The minute book entry, which is relied upon to show the waiver, states as follows:

'Defendant, Garland Leeds, was brought before Court. Defendant, Garland Leeds, waived appointment of attorney to represent him in this cause, and, it appeared to the Court that the defendant was an intelligent man and was capable of making an intelligent waiver. Defendant, Garland Leeds, was arraigned and plead guilty to the charge of Escape. Court adjudged the defendant to be guilty as charged and sentenced him to serve two (2) years in the State Penitentiary, this sentence to run consecutively with sentence now being served. For sentence see C.C.M. Book 12, page 522. (Defendant stated his age to be 34 years).'

Appellant contends this is not sufficient to conclusively show an intelligent waiver, and therefore the motion should not have been denied without a hearing.

Appellee argues that the appellant is entitled to no relief on the basis of the record, and that the appellant is merely claiming the record does not sufficiently show a waiver, but does not allege that he did not actually waive counsel. Appellant also contends that the motion is defective because it fails to allege insolvency.

The controlling principles were set forth in King v. State, Fla.App.1963, 157 So.2d 440, 444:

'* * * In a right-to-counsel case, the burden rests upon the defendant in his collateral attack upon the judgment to rebut this presumption by first alleging and then proving by a preponderance of the evidence (1) that he was not represented by counsel; (2) that he was financially unable to employ counsel; and (3) that he did not competently and intelligently waive his right to counsel. In regard to this latter point, upon a motion so alleging, if the record shows that the court neither advised defendant of his constitutional right to counsel nor offered to appoint counsel, and the return of the prosecuting attorney of the court makes no allegations of fact to the effect that the defendant was aware of his constitutional right to counsel and was offered counsel, there is no need to determine the question of competent and intelligent waiver, for a waiver 'is ordinarily an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, supra, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (82 L.Ed. 1461). The fact that the record is Silent as to whether or not a defendant requested counsel, or whether or not a defendant was offered counsel, does not create a presumption that the defendant waived his constitutional right to counsel. 'Presuming waiver from a silent record is impermissible.' ...