Nelson v. State

• Decision Date: 28 February 1973
• Docket Number: No. 71--1008,71--1008
• Citation: Nelson v. State, 274 So.2d 256 (Fla. App. 1973)
• Citation: 274 So. 2d 256
• Parties: William Arthur NELSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 256

274 So.2d 256

William Arthur NELSON, Appellant, v.STATE of Florida, Appellee.

No. 71--1008.

District Court of Appeal of Florida, Fourth District.

Feb. 28, 1973.

Rehearing Denied March 29, 1973.

Walter N. Colbath, Jr., Public Defender, and Carl V. M. Coffin, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Nelson E. Bailey, Asst. Atty. Gen., West Palm Beach, for appellee.

REED, Chief Judge.

This is an appeal from an order of the Criminal Court of Record for Orange County, Florida, denying without an evidentiary hearing a motion to vacate a judgment and sentence filed by the defendant pursuant to Rule 3.850 CrPR, 33 F.S.A.

The appellant had been charged with the robbery of one Robert Fleming on 5 February 1970.Appellant pled not guilty.He was convicted by a jury and sentenced to 25 years in prison.On 6 April 1971the appellant filed the motion to vacate.The motion alleged that although the appellant, an indigent, had court appointed counsel at the time of arraignment, he only saw counsel on one occasion.The motion avers that the appointed counsel was a personal friend of the robbery victim.Appointed counsel allegedly suggested that the appellant plead guilty.The motion further states that after appellant refused to plead guilty, appellant asked the trial judge prior to the commencement of trial to dismiss appointed counsel.The trial judge complied with the request to dismiss appointed counsel, but refused appellant's request to appoint a successor.As a consequence, the defendant was required to stand trial without the assistance of counsel.

The trial court's order on the motion to vacate indicates that the court in passing on the motion referred to certain notes of the court reporter which were made at the time the appellant moved the court to discharge his court appointed attorney.Apparently from these notes, which are not in the record before us, the trial judge made the following findings:

'1) That Defendant was not tried against his will without representation on November 10, 1970.

2) That Defendant was not sentenced against his will without representation on February 10, 1971.

3) That on the occasion of Defendant's trial on November 10, 1970 after being advised by the Trial Judge that he would have to proceed to trial without counsel if he persisted in his demand that court appointed counsel withdraw, Defendant did so persist and the trial proceeded.

4) That on the occasion of Defendant's being sentenced on February 10, 1971 his formerly court appointed counsel was present with the Defendant and did participate as counsel of record for Defendant in the sentencing procedure.'

On these findings the trial judge denied the motion.

This appeal raises what seems to be a recurring issue--the procedure which the trial court should follow for the purpose of protecting an indigent's Sixth Amendment right to counsel in a criminal prosecution where before the commencement of the trial the Defendant moves to discharge appointed counsel.SeeLove v. State, 270 So.2d 408, 4 DCA, opinion filed December 12, 1972.

The right of an indigent to appointed counsel includes the right to effective representation by such counsel.Anders v. State, 1967, 386 U.S. 738, 744--745, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493;Chalk v. Beto, 5 Cir.1970, 429 F.2d 225.Although we are not able to formulate any verbal criteria that will define for all situations conduct which measures up to 'effective assistance', it may be said with reasonable assurance that the delivery of effective assistance requires the attorney involved to make a reasonable investigation into the facts of the case and to acquaint himself with the law pertinent to the facts.In addition,...