Mullins v. State

• Decision Date: 21 November 1963
• Docket Number: No. E-293,E-293
• Citation: 157 So.2d 701
• Parties: Hilton MULLINS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 701

157 So.2d 701

Hilton MULLINS, Appellant, v. The STATE of Florida, Appellee.

No. E-293.

District Court of Appeal of Florida, First District.

Nov. 21, 1963.

Hilton Mullins, in pro. per.

Richard W. Ervin, Atty. Gen., and A. G. Spicola, Jr., Asst. Atty. Gen., for appellee.

CARROLL, DONALD K., Justice.

This is one of a myriad of cases that have descended upon the state courts as a result of the recent dicision of the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, decided March 18, 1963, holding that the right to counsel in criminal cases in state courts is one of the fundamental rights guaranteed by the 14th Amendment to the United States Constitution.

The case before us is typical of many of such cases in which the accused pleaded guilty to the charges against him and was tried, convicted, and sentenced without his being represented by counsel--except for the additional fact that in the present case the accused, a minor, was accompanied by his mother at the arraignment and they both stated to the court that they did not desire counsel.

The critical question before us, therefore, is whether in this instance the accused effectively waived his right to counsel consistently with the doctrine laid down in the Gideon case.

In Gideon v. Wainwright, supra, the majority of the United States Supreme Court, in an opinion written by Mr. Justice Black, overruled an earlier decision on the point and held that the right of an indigent defendant in a criminal trial in a state court to have the assistance of counsel is a fundamental right essential to a fair trial, and such a defendant's trial and conviction without the assistance of counsel is violative of the 14th Amendment. The court held that the provision in the 6th Amendment--'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence'--was made applicable to state courts under the 'due process of law' clause of the 14th Amendment. The Supreme Court declared that in or country the right of one charged with crime to counsel is fundamental and essential to fair trials.

At one point in the opinion in the Gideon case the Supreme Court adverted to the subject of the waiver of this fundamental right, the crucial question on the present appeal, and stated that the court had held that in the federal courts 'counsel must be provided for defendants unable to employ counsel unless the rights is competently and intelligently waived.' The court cited in support of the last proposition its decision in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

We then turn to the decision in this Johnson case for light as to the character of the waiver necessary for an indigent defendant to give up his fundamental right to counsel. The United States Supreme Court, in an opinion written by Mr. Justice Black, held concerning the waiver of this right:

'There is insistence here that petitioner waived this constitutional right.

The District Court did not so find. It has been pointed out that 'courts indulge every reasonable presumption against waiver's of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

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'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused--whose life or liberty is at stake--is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.'

In the Johnson case the petitioner for a writ of certiorari, while imprisoned in a federal penitentiary, had filed a petition for a writ of habeas corpus in a federal district court, which had discharged the writ. The United States Supreme Court reversed the cause and remanded it to the district court, with these instructions:

'In this case, petitioner was convicted without enjoying the assistance of counsel. Believing habeas corpus was not an available remedy, the District Court below made no findings as to waiver by petitioner. In this state of the record we deem it necessary to remand the cause. If--on remand--the District Court finds from all of the evidence that petitioner has sustained the burden of proof resting upon him and that he did not competently and intelligently waive his right to counsel, it will follow that the trial court did not have jurisdiction to proceed to judgment and conviction of petitioner, and he will therefore be entitled to have his petition granted. It petitioner fails to sustain this burden, he is not entitled to the writ.'

It is our opinion that the rules and holdings quoted above from the Johnson case concerning the waiver of the right to counsel in the federal courts are consistent with, if not incorporated in, the Supreme Court's opinion in the Gideon case, relating to the right to counsel in the state courts.

The Gideon decision also throws light upon another phase of the instant case--the fact that the minor appellant was accompanied by his mother when he pleaded guilty and stated he did not desire counsel. The Supreme Court declared:

'* * * A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158]:

"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...