Savage v. State, E-291
| Decision Date | 03 October 1963 |
| Docket Number | No. E-291,E-291 |
| Citation | 156 So.2d 566 |
| Court | Florida District Court of Appeals |
| Parties | Ernest L. SAVAGE, Appellant, v. STATE of Florida, Appellee. . First District |
Ernest Lee Savage, in pro. per.
Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
This appeal is from an order rendered by the Court of Record of Escambia County denying appellant's petition for post conviction relief filed pursuant to the provisions of Criminal Procedure Rule No. 1, 31 F.S.A.
The petition filed by appellant prays for an order vacating and setting aside two judgments of conviction and sentence previously rendered by the Court of Record of Escambia County. The first judgment assaulted was rendered on January 29, 1960, pursuant to which appellant was sentenced to imprisonment in the state prison for a term of six months to five years. The second judgment was rendered on December 16, 1960, by which appellant was sentenced to imprisonment in the state prison for a period of five years, which sentence was ordered to run concurrently with the sentence then being served by appellant under his previous conviction.
By his motion for relief filed April 22, 1963, appellant alleges that at the time of his arraignment on each of the informations charging him with the criminal offenses for which he was adjudged guilty, he was not versed in criminal proceedings and in each instance the trial judge failed to appoint counsel to assist him in his defense. It is alleged that as a result appellant plead guilty to each of the charges resulting in the imposition of the sentences which he now seeks to have set aside and declared void. Petitioner alleges that failure of the trial judge to appoint counsel to represent him violated his constitutional right to due process of law under the 14th amendment to the Constitution of the United States.
The order appealed recites that having considered the petition filed by appellant and the record of each prosecution out of which the judgments of conviction arose the court finds that appellant waived his right to the appointment of counsel in his behalf and voluntarily plead guilty to the offense for which he was adjudged guilty and sentenced, and that appellant is therefore not entitled to the relief requested by his petition. The prayer to vacate and set aside the judgments was accordingly denied.
Appellant's right to relief is premised upon the ruling of the Supreme Court of the United States rendered in the Gideon case, 1 wherein it is held that the right of an indigent defendant charged with the commission of a felony to court appointed counsel is a fundamental safeguard guaranteed by the 14th amendment to the United States Constitution, unless such right is intelligently and understandingly waived. The order appealed makes no finding nor conclusion as to whether appellant, at the time of his arraignment and plea of guilty, intelligently and understandingly waived his right to court appointed counsel. Unless this fact is established to the satisfaction of the trial judge, the waiver of counsel by one charged with a felony would not in itself be sufficient to deny relief under the Gideon decision. Because of the insufficiency of the order appealed, it would ordinarily be necessary that this case be returned to the trial court for further proceedings and the taking of evidence on the question of waiver. However, because of the matters and things hereinafter discussed, such action will not be necessary in this case.
An examination of the petition for relief filed by appell...
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