Mobley v. State

• Decision Date: 30 October 1968
• Docket Number: No. 1521,1521
• Citation: 215 So.2d 90
• Parties: Floyd MOBLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 90

215 So.2d 90

Floyd MOBLEY, Appellant, v. STATE of Florida, Appellee.

No. 1521.

District Court of Appeal of Florida, Fourth District.

Oct. 30, 1968.

Louis R. Bowen, Jr., Public Defender, and William B. Barnett, Asst. Public Defender, Orlando, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.

BARNS, PAUL D., Associate Judge.

This appeal is taken and prosecuted by the assistant public defender on behalf of the defendant convicted of breaking and entering with intent to commit a misdemeanor. We affirm.

The verdict, judgment and sentence were entered on June 14, 1967, and the notice of appeal is dated June 15, 1967. No motion for a new trial was made, doubtless, because the assistant public defender concluded that the defendant had received a fair and just trial and there were no meritorious grounds which he in good faith could urge for a new trial. Yet, he entered an appeal seeking reversal for asserted error at trial.

I

The assignment of error argued by appellant is that the court erred in allowing the prosecutor to comment to the jury in his closing argument, over objections of the defendant that the defendant knew the state 'didn't have any fingerprint evidence against him, because he knows when he went in there he had on gloves.' Gloves were offered in evidence against the defendant, but were excluded. However, the arresting officer had previously testified without objection that 'at the time we stopped him the gentleman was removing, that is before he got out of the car, he removed his gloves.'

The error asserted and the circumstances were as follows:

(MR. EAGAN, Assistant County Solicitor)

'* * * I submit he knows that we didn't have any fingerprint evidence against him, because he knows when he went in there he had on gloves.

'MR. BARNETT: The gloves have been ruled out of the evidence; this is an improper comment.

'MR. EAGAN: It was the testimony of the officers.

'THE COURT: The testimony by the officer that he personally saw the gloves removed from the defendant's hands.

'MR. BARNETT: Thank you, Your Honor.'

Viewed objectively, this appeal is clearly frivolous and unjustified even if requested by the indigent defendant of his counsel, the assistant public defender, who represented him at trial and who had first-hand information of the trial proceedings, when he initiated this appeal. The law did not require it and the ethics proscribed it, unless the attorney believed these were 'good grounds to support it.'

II

F.R.Crim.P. 1.080, 33 F.S.A. provides that 'the signature of an attorney shall constitute a certificate by him that he has read the pleading or paper; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.' This provision is declaratory of a standard of ethics imposed upon all attorneys and the exactions of such standard cannot justly be circumvented by an attorney drafting papers for the defendant to sign and file by withholding his own signature, which practice appears to have been pursued in other cases, but not in this case.

Neither due process nor equal protection require an appeal or that an indigent convicted of crime shall have As of course the services of an attorney provided by the state to take a frivolous appeal, even though he may appeal as a matter of right. Such a requirement would cause congestion and retard the speedy administration of justice by the squandering of Judicial services and other evils. No attorney is required in the discharge of his duty to a client to take a frivolous appeal or one which he justly believes without merit. Nelson v. State, Fla.App.1968, 208 So.2d 506.

The constitutional right, provided by the Sixth Amendment, that 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the assistance of counsel for his evidence' was prompted by reason of the fact that most defendants are presumed to be incompetent to protect their interest without professional assistance and guidance of an attorney in his professional capacity. As stated in Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733:

'* * * A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.' 287 U.S., at 68--69, 53 S.Ct., at 64, 77 L.Ed. 158.'

When a convicted defendant has had the benefit of counsel at trial to protect his interest, he has a right of appeal as a matter of right, but whether an appeal is to be or should be initiated by his counsel is a matter which calls for professional evaluation by his attorney after consultation with his client. The defendant's attorney is not required to exercise the defendant's right to appeal by taking perfunctory appeal guided only by the request of the defendant (whether indigent or not), devoid of the exercise of professional evaluation of the merits or good faith of the appeal; however, it is clearly apparent that the state's public defenders do.

The attorney assisting the defendant in his defense against a charge of crime is the agent of the defendant in a qualified and limited sense and in the exercise of his professional judgment and discretion he need not at every stage consult and advise with client as to his actions for and on behalf of his client and obtain his client's approval in the exercise of his professional services, even though he is the agent of the accused. He is not under all circumstances subject to the dictates of his client, but under some circumstances he is, as hereinafter noted.

Florida Rule: Not Inviting Frivolous Appeals

F.R.Crim.P. 1.670 provides:

'When a judge renders a final judgment of conviction, imposes a sentence, grants probation or revokes probation, he shall forthwith inform the defendant concerning his rights of appeal therefrom, including the time allowed by law for taking an appeal.'

This stated rule providing that the court 'shall forthwith inform the defendant Concerning his right of appeal' and does not contain the provisions of the federal rule that if the defendant so requests that the clerk of the court will 'file forthwith a notice of appeal' on his behalf. This state rule leaves the question open for the professional evaluation and determination on an informed judgment after conference between trial counsel and the defendant; this conference is most essential for ethical reasons in order that his counsel keep the defendant fully advised, and particularly so in event the trial counsel for any reason does not recommend or intend to take an appeal. An appeal is a step in the case and not a new case.

Federal Rule: Inviting Frivolous Appeals

Fed.R.Crim.P. 32(a)(2), provides:

'(2) Notification of right to appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.'

It seems self-evident that this federal rule tends to encourage frivolous or 'no merit' appeals in the federal system. The language of the above-quoted rule fosters and invites frivolous appeals paid for by United States Treasury--and burdens the United States Courts of Appeal to detriment of the public welfare. Suggs v. United States, D.C.Cir.1968, 391 F.2d 971, shows that Fed.R.Crim.P. 32(a)(2) and the entry of an appeal devoid of prior professional evaluation by the trial attorney representing the indigent, in initiating 'a new order of things' results in the dissipation of the public funds and the squandering of the judicial resources; footnotes 14 and 15 state:

'14. Chief Judge Bazelon in his letter to the Attorney General dated May 17, 1967, stated:

"Ninety-three percent of the criminal cases tried in the United States District Court for the District of Columbia are appealed to this court,' (adding that)

"Our case load has risen from 48 to 78 cases per judgeship in the last few years and continues to increase."

'15. The possibilities are substantial. In the first nine months of this year, there occurred in the District of Columbia, 4091 robberies, 2400 cases of aggravated assault, 10,535 burglaries and 5921 auto thefts. (Uniform Crime Statistics released by the Federal Bureau of Investigation, December 11, 1967.)'

The language of this federal rule makes the judge the 'advocate' for the defendant in lieu of his appointed counsel, when it requires the judge to advise the indigent convicted defendant that if the defendant so requests the clerk of the court will then and there 'file forthwith a notice of appeal' on his behalf; a...