McDaniel v. State, K--18

Decision Date23 July 1968
Docket NumberNo. K--18,K--18
Citation212 So.2d 814
PartiesWilliam D. McDANIEL, Sr., Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Joseph A. Scarlett, Public Defender, and Richard O. Watson, Asst. Public Defender, for appellant.

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

WIGGINTON, Chief Judge.

Appellant seeks review of an order rendered by the trial court denying his motion filed pursuant to the provisions of Criminal Procedure Rule 1.850, 33 F.S.A. to vacate and set aside a judgment of conviction and sentence rendered against him on November 21, 1963.

Appellant was charged with and convicted by a jury for the offense of murder in the first degree with a recommendation of mercy. On December 16, 1963, he was adjudged guilty and sentenced to a life term of imprisonment in the state prison. At no point in these proceedings was appellant adjudged insolvent, but on the contrary was represented throughout the trial and sentencing by attorneys of his own choice employed by him.

Neither appellant nor anyone acting on his behalf filed a notice of appeal from the judgment and sentence here assaulted. Instead, appellant wrote a letter to the chief judge of this court advising that although he had been represented by privately employed counsel during the trial, he was no longer financially able to continue paying court costs and attorney's fees, and for this reason his trial counsel had refused to represent him on an appeal which he desired to take from the final judgment of conviction and sentence. Appellant then proceeded to request this court to appoint counsel to represent him on the appeal, and to take the steps necessary to secure an appellate review of his judgment. Since no appeal was pending in this court, the court was without jurisdiction to entertain and act upon any motion or request by appellant concerning the appointment of counsel to represent him on appeal. In an effort to be helpful, however, the chief judge of this court wrote a letter to appellant's trial counsel advising them of the substance of the letter received from appellant, and soliciting their willingness to consult with appellant and take such steps as would be necessary to establish appellant's insolvency in the trial court in order that counsel might thereafter be appointed to represent him on his appeal. A copy of such letter was sent both to appellant and to the resident circuit judge of the court in which appellant was convicted. Neither appellant, his former counsel, nor anyone acting on his behalf, took any action as required by the statutes of this state to establish his insolvency before the trial court, the adjudication of which was a necessary prerequisite to appellant's entitlement as an indigent defendant to the appointment of counsel to represent him at state expense in the prosecution of an appeal from his judgment and sentence.

The motion for post conviction relief against the 1963 judgment and sentence imposed on appellant was filed in the trial court on September 2, 1967. Appellant's sole ground urged in support of his motion is that he was denied the right to the appointment of counsel to represent him on an appeal from his judgment of conviction rendered approximately four years earlier in the circuit court of St. Johns County. The public defender was appointed by the court to represent appellant, and the state attorney was directed to file a response to the motion setting forth the State's...

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1 cases
  • McDaniel v. State, 38010
    • United States
    • Florida Supreme Court
    • 12 Febrero 1969 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 a......

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