Mayo v. Wade, 11715.
Decision Date | 22 November 1946 |
Docket Number | No. 11715.,11715. |
Citation | 158 F.2d 614 |
Parties | MAYO, State Prison Custodian, v. WADE. |
Court | U.S. Court of Appeals — Fifth Circuit |
J. Tom Watson, Atty. Gen., of Florida, and Reeves Bowen and Sumter Leitner, Assts. to Atty. Gen., of Florida, for appellant.
Eugene M. Baynes, of West Palm Beach, Fla., for appellee.
Before SIBLEY, HUTCHESON, and WALLER, Circuit Judges.
Appellee was convicted in Palm Beach County, Florida, March 14, 1945, in the Criminal Court of Record, for the offense of breaking and entering, which was not a capital offense. On the next day he filed a petition in habeas corpus in the Circuit Court of the State of Florida having jurisdiction in Palm Beach County, alleging that he had been unable to employ counsel, and that the Criminal Court of Record denied his request for the Court to appoint counsel to represent him in his trial. The Circuit Court quashed the writ and remanded the Appellee to the custody of the Sheriff of Palm Beach County.
His appeal to the Supreme Court of Florida was, on motion of the Attorney General of the State of Florida, dismissed as frivolous. Having exhausted all available remedies in the state courts, Appellee, on May 10, 1946, filed a petition, with substantially the same allegations, for a writ of habeas corpus in the District Court of the United States for the Southern District of Florida, Jacksonville Division. He was allowed to proceed in forma pauperis and in due course a return to the writ was filed by Respondent. Testimony was taken and upon final hearing the Court below made the following finding:
The Appellee had, in November, 1943, pleaded guilty in Jackson County, Florida, to a charge of burglary, and had served a portion of his sentence, from which he was on parole at the time of the alleged breaking and entering in Palm Beach County. He had completed the eighth grade in school. During the progress of the trial in the second case it appeared that Appellee: (a) Was advised by the trial Judge of his right to challenge jurors and excuse as many as six without any reason being given therefor; (b) was afforded an opportunity, which he accepted, to cross examine state witnesses; (c) took the stand and testified fully in his own behalf; (d) was offered the privilege of arguing his case to the jury but declined, as did the prosecuting attorney.
There were no complicated questions of law involved in the trial but only simple questions of fact.
Two others who were charged with the offense jointly with Wade pleaded guilty.
The Court below, after hearing the evidence, was of the opinion, and so held, that under Section 11 of the Declaration of Rights of the Florida Constitution1 and certain Florida decisions2 the refusal of the trial Court to appoint an attorney to defend Petitioner was a denial of due process under the laws of Florida, contrary to the Fourteenth Amendment to the Federal Constitution.
In undertaking to determine what the Florida law on the subject is we note that Sec. 909.21, Florida Statutes, 1941,3 requires the appointment by the court of counsel to defend indigent persons only in capital cases. This statute makes it mandatory for the court to appoint attorneys for indigent persons in capital cases and to pay them out of the public treasury, but there is no requirement that counsel be appointed to represent a defendant in a non-capital case, and there is no authority to pay counsel for defending such a case in the event the court, in the exercise of its discretion, did appoint one.
In Watson v. State, 142 Fla. 218, 194 So. 640, 642, decided March 8, 1940, the Supreme Court of Florida said:
In Johnson v. State, 148 Fla. 510, 4 So.2d 671, 672, decided November 21, 1941, the Court said:
It is not necessary, however, for us to review other cases for it seems that the Supreme Court of Florida has decided the very case before us. Attention was called heretofore to the fact that the Florida Supreme Court had sustained the Attorney General's motion to dismiss Wade's appeal as frivolous. No opinion was written in that case, but on October 6, 1946 since the rendition of the opinion by the lower Court in the present case, in the case of Johnson, Petitioner, v. Mayo, as State Prison Custodian, Fla., 28 So.2d 585, that Court had before it the petition of Johnson for a writ of habeas corpus, alleging that he was brought to trial in Madison County, Florida, for the larceny of an automobile, a non-capital felony, and forced to go to trial without counsel, notwithstanding the fact that he had stated to the Court that he was without funds with which to employ counsel and had requested that the Court appoint counsel for his defense. His contention before the Supreme Court was that the trial Court, by refusing to appoint counsel to defend him, violated Sec. 11 of the Declaration of Rights of the Constitution of Florida and the Fourteenth Amendment to the Federal Constitution, by reason of which his conviction, judgment, and sentence were void. The sole question presented to the Supreme Court of Florida was whether or not under the Constitution and statutes of Florida the Judge of the trial Court was required to appoint counsel to defend an indigent defendant in a non-capital case. The Supreme Court said:
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Wade v. Mayo
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