McKay v. Jenkins, YY-123

• Decision Date: 30 October 1981
• Docket Number: No. YY-123,YY-123
• Parties: Frederick B. McKAY, Appellant, v. Robert B. JENKINS and Helen L. Jenkins, and State Farm Fire & Casualty Company, as their subrogee, Appellees.
• Court: Florida District Court of Appeals

Page 287

405 So.2d 287

Frederick B. McKAY, Appellant, v. Robert B. JENKINS and Helen L. Jenkins, and State Farm Fire & Casualty Company, as their subrogee, Appellees.

No. YY-123.

District Court of Appeal of Florida, First District.

Oct. 30, 1981.

Frederick B. McKay, pro se.

Betsy C. Cox of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellees.

PER CURIAM.

This court earlier reserved for consideration, together with the merits, appellee's Motion to Strike those portions of appellant's brief referring to appellant's conviction and sentencing on multiple counts of burglary and grand theft, which appellee asserts are outside the record and impertinent to the issues presented on appeal. We note that the record contains numerous references to burglary, theft, and liability therefor, and that many of these references were introduced by the appellees. Accordingly, the Motion to Strike is denied. Unsupported or irrelevant claims and arguments in the appellant's brief that go beyond the record will be treated as such.

As to the merits, appellant appeals a final judgment in a civil action for conversion, adjudging that appellees, plaintiffs below, recover from appellant a total of $11,297.67, plus costs. We reverse and remand for new trial.

Plaintiffs alleged that the defendant converted to his own use by theft and burglary the property of plaintiffs. A hearing to set the case for trial was held and the trial was conducted without the defendant appearing or being represented. Between the date of the hearing and the trial, defendant wrote two letters to the court in which he stated that he was then serving a fifty-year sentence at Union Correctional Institution, Raiford, Florida, denied his liability for the claimed damages, stated that he wished to present his defense at trial, and asked for information on the procedure he should follow in order to appear. No action was taken on the letters by the court, and eventually the case proceeded to trial without the presence of appellant; judgment was then entered in appellees' favor; whereupon appellant filed a notice of appeal, a declaration of indigency, and a request for appointed counsel.

This court first considers appellant's pro se argument that the judgment was unlawful for two reasons: first, because the judgment arose out of an earlier multi-count conviction for burglary and grand theft for which he had received a sentence, which took into consideration the fact that he was unable to make restitution, and second, because Florida Rule of Criminal Procedure 3.111(b)(2) entitles him to appointed counsel. There is no merit in these assertions. The instant case is a civil suit, separate and independent of any previous criminal convictions. It is not a postconviction proceeding in the sense of Florida Rule of Criminal Procedure 3.111(b)(2), and there is no possibility of appellant being deprived of liberty as a result of the suit. There is no right to appointed counsel in a civil suit of this type. See, for example, Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972), and In The Interest of D.B. and D.S., 385 So.2d 83, 89 (Fla. 1980). However, we do recognize that a trial judge may, in...