Roque v. State, 70--239
| Decision Date | 09 June 1971 |
| Docket Number | No. 70--239,70--239 |
| Citation | 249 So.2d 712 |
| Parties | Billy ROQUE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Walter R. Talley, Public Defender, and D. Turner Matthews, Asst. Public Defender, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and P. A. Pacyna, Asst. Atty. Gen., Lakeland, for appellee.
Appellant Billy Roque appeals to this Court from a judgment of conviction entered against him in the Hillsborough County Criminal Court of Record after a trial and adverse verdict in a prosecution for possession of heroin.
The sole question involved on this appeal is Rogue's contention that the trial Court was in error in proceeding to trial with the Court-appointed Public Defender representing Roque. The unusual circumstances of the case leading up to the actual trial give rise to such contention, although the point lacks merit in the light of such facts.
Information was filed in the Hillsborough County Criminal Court of Record on October 31, 1969, charging Roque with having in his possession on September 24, 1969, a certain narcotic drug, to-wit heroin. On November 18, 1969, the case came up before the Court in due course for arraignment and entry of plea. From this point on up to the ultimate jury trial and conviction there was a continuing and recurring colloquy between the Court, Roque himself, and adversary counsel as to Roque's legal representation for the trial.
The Public Defender representing Roque on this appeal waxes eloquent in his brief in contending that when Roque was eventually tried he did not have the benefit of counsel with sufficient knowledge of the case and adequate opportunity for preparation beforehand to afford Roque adequate representation. But the record lodged here, in its broad aspects, does not sustain such accusation; also, that whatever situation Roque was in when he finally went to trial was caused practically entirely by his own default in not carrying out the previous orders of the Court as to procuring private counsel (which he insisted upon) rather than Court-appointed counsel; and lastly, that it affirmatively appears Roque had the benefit of adequate and well-informed counsel at the trial.
At the risk of appearing redundant, we think it would be illuminating to quote directly from the record as to exactly what happened on each occasion that the case came before the trial Court for further proceedings or disposition, especially in this era of 'modern thought' when frequently whatever the trial Court does in any criminal case becomes thereafter the target for accusations of denial of due process, refusal of equal protection and all the other gamut of Constitutional rights, real or imaginary.
We have already mentioned that on November 18, 1969, the case was in due course called up in open Court for arraignment and plea of Roque on the information. We here quote from the record on that date:
'MR. LAZZARA (for the defense): Your Honor, this defendant (Roque) was represented by Mr. Bill Switalski, whom I am associated with, through the preliminary hearing. This case was called up for arraignment last week, I believe, and was continued by this Court until this time, for purposes of entering into some arrangement or agreement as to representation, which we were not able to do at this time, your Honor. And at this time we will be withdrawing as counsel for the defendant.
MR. AYALA (for the State): All right, you are Billy Roque, is that correct?
(Conference between the defendant and Mr. Lazzara.)
Harry Lee Coe, III, Acting County Solicitor of the 13th Judicial Circuit in and for the County of Hillsborough, charges that you, Billy Roque, on the 24th day of September, 1969, in the County of Hillsborough and State of Florida, did unlawfully and feloniously possess and have control of a certain narcotic drug, to-wit, heroin, a further description of which is to the County Solicitor unknown.
To that Information charging possession of Heroin, how do you plead, guilty or not guilty?
(Defendant stood mute).
So on November 18, 1969, after the foregoing colloquy in open Court, a not guilty plea was entered and the case set for trial on January 15, 1970, during which interval Roque was instructed by the Court to get private counsel to represent him or 'contact the Public Defender and be ready for trial on' January 15th--all of which was 'clear' to Roque.
On January 15, 1970, the day the case had been set for trial as aforesaid, the case was called, with Roque before the Court and the following proceedings appear from the record:
MR. MACKENZIE (for the State): Billy Roque.
THE COURT: The Public Defender's Office represents Billy Roque?
MR. RAWLINS (Public Defender): No, we do not, your Honor. It is my understanding that Mr. Roque went to see Judge Durrance late yesterday afternoon, and the Judge referred him to our office to determine if there was some way we could help him. And Mr. Roque did come to my office again this morning. And I understand that he does have some funds and that he is in the process of hiring an attorney and is desirous of a continuance in the case and will be able to hire his own attorney if the Court sees fit to continue it. I could not under any conditions, Judge, try the case on such short notice, and I am sure Judge Durrance did not intend to put me in that position if he were here. I think all he wanted me to do was try to assist Mr. Roque in obtaining at least a continuance so he can hire counsel. And he does have some monies available at this time, not quite enough, and he feels he will be able to get his own attorney.
So February 26, 1970, was the new date set in open Court for trial. On that date the case was again called in open Court, with Roque present, and we quote from the record as to the proceeding on that day when the case was called:
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Roque v. State
...899 Billy ROQUE, Petitioner, v. STATE of Florida, Respondent. No. 41311. Supreme Court of Florida. July 26, 1971. Certiorari denied. 249 So.2d 712. ROBERTS, C.J., and ERVIN, CARLTON, ADKINS and BOYD, JJ., ...