McDaniel v. State, 38010

Decision Date12 February 1969
Docket NumberNo. 38010,38010
PartiesWilliam D. McDANIEL, Sr., Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

William D. McDaniel, Sr. in pro. per.

Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.

HOPPING, Justice.

In 1963, Petitioner, William D. McDaniel, Sr., was indicted and convicted of first degree murder. The jury recommended mercy and the Court sentenced petitioner to life imprisonment. Petitioner was represented throughout his trial and all proceedings up to the time of sentencing by counsel employed by him.

After his sentence was imposed, but before the time for appeal had expired, petitioner wrote to the Chief Judge of the First District Court of Appeal, stating that he had become insolvent during his trial and that his attorneys advised him they could not pursue his appeal without a fee. He asked the District Court of Appeal to appoint an attorney to represent him to appeal. The Chief Judge of the District Court replied by writing a letter to petitioner's trial attorneys pointing out that it was not the practice of that court to appoint an attorney and that it would be necessary for petitioner to establish his indigency by appropriate proceedings before the trial court. The letter further stated:

'It occurred to me that under the circumstances you would probably be glad to consult with Mr. McDaniel and in his behalf take the appropriate steps to have him present to the Circuit Court the matter of his alleged insolvency and desire to have court-appointed counsel for appeal purposes and that is the object of this letter.'

Petitioner and the trial court judge were favored with copies of this letter to petitioner's trial counsel. No affirmative action was taken either by trial court judge or petitioner's former trial counsel.

On November 30, 1967, a supplementary petition to vacate and set aside petitioner's judgment and sentence was filed by the assistant public defender, alleging that failure to appoint appellate counsel for the petitioner after he had applied for counsel violated his rights under the Constitutions of the State of Florida and the United States. This supplementary petition, filed in the Circuit Court for St. Johns County, was treated as an application for relief under Florida Rules of Criminal Procedure, Rule 1.850, 33 F.S.A. The trial court denied this petition holding that since the petitioner did not file his appeal within the time provided by law the allowance of an appeal at this late date would impose an unauthorized cost burden upon the county. Petitioner, through the assistant public defender, thereafter sought review of this trial court determination in the First District Court of Appeal, which affirmed the trial court's dismissal. The District Court's opinion (see McDaniel v. State, 212 So.2d 814, Fla. 1st DCA, 1968) reviewed the facts of the case and went on to point out that when the letter of the Chief Judge was sent to petitioner advising him of his rights, neither petitioner, his former counsel, nor anyone acting in his behalf took any action to establish his insolvency before the trial court, the adjudication of which was a necessary prerequisite to the appointment of counsel to represent him on appeal. The main thrust of the District Court's holding in this case was that although an indigent defendant is entitled to have counsel appointed by the court represent him on appeal, it is equally clear that before he may secure such counsel he must first take steps required of him to establish his indigency and until this is done there is no obligation resting upon the trial court to appoint counsel to represent him on appeal.

Petitioner brings the instant action by filing his petition for writ of habeas corpus with this Court.

It is now clear that an indigent has a right guaranteed under both the equal protection clause and the due process clause, to appellate counsel. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). However, when an accused is represented at trial by his own counsel, his status before the court is not that of an indigent and thus the trial judge need not appoint appellate counsel or make inquiries as to indigency. Should indigency come to a convicted defendant wishing to appeal, the burden is upon his shoulders to so inform the Court. As the court stated in Pate v. Holman, 341 F.2d 764, 775 (5th Cir. 1965):

'* * * For a petitioner to be entitled to post-conviction relief, it is not enough to show that indigency occasioned...

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5 cases
  • Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, In re
    • United States
    • Florida Supreme Court
    • 3 Mayo 1990
    ...appeal. See Hooks v. State, 253 So.2d 424 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972); McDaniel v. State, 219 So.2d 421 (Fla.1969); see also Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 The source of this problem is clearly the woefully inad......
  • Fuller v. Wainwright
    • United States
    • Florida District Court of Appeals
    • 8 Agosto 1972
    ...that the defendant should be granted a delayed appeal by habeas corpus based on Powe v. State, Fla.1968, 216 So.2d 446; and McDaniel v. State, Fla.1969, 219 So.2d 421. This Court agrees with the position of the State and for our own satisfaction have, on the 5th day of March 1971, ordered a......
  • Hatten v. State, 74694
    • United States
    • Florida Supreme Court
    • 3 Mayo 1990
    ...appeal. See Hooks v. State, 253 So.2d 424 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972); McDaniel v. State, 219 So.2d 421 (Fla.1969); see also Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). It is the duty of the public defender, as couns......
  • M.S., In Interest of
    • United States
    • Florida District Court of Appeals
    • 27 Agosto 1984
    ...have determined to exercise our original jurisdiction under Rule 9.030(b)(3) in order to achieve substantial justice. See McDaniel v. State, 219 So.2d 421 (Fla.1969). Thus, we respectfully disagree with the dissent's reliance on Potvin v. Keller, 313 So.2d 703 (Fla.1975), as authority for t......
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