Simpson v. State

• Decision Date: 19 May 1964
• Docket Number: No. 63-843,63-843
• Citation: 164 So.2d 224
• Parties: Clarence SIMPSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 224

164 So.2d 224

Clarence SIMPSON, Appellant, v. The STATE of Florida, Appellee.

No. 63-843.

District Court of Appeal of Florida, Third District.

May 19, 1964.

Robert L. Koeppel, Public Defender and W. Eugene Neill, Asst. Public Defender, for appellant.

James W. Kynes, Jr., Atty. Gen. and Leonard R. Mellon, Asst. Atty. Gen., for appellee.

Before CARROLL, HORTON and HENDRY, JJ.

HENDRY, Judge.

Clarence Simpson appeals an order denying his motion for relief pursuant to Criminal Rule 1, F.S.A. ch. 924 Appendix. In his motion, and by this appeal, appellant raises one issue of law; to-wit: whether the right to counsel guaranteed to indigents by the Sixth Amendment of the Federal Constitution includes the right to question the competence of such counsel.

Appellant in his motion alleges that he was denied his constitutional right to counsel, in that, the court-appointed counsel was incompetent. The trial court denied his motion without affording a hearing, thereby implying that as a matter of law, a collateral attack could not be made on a judgment of conviction on the basis of the incompetency of counsel.

It seems that the courts of this state have passed upon this question indirectly in Wilder v. State, Fla.App., 1963, 156 So.2d 395, 397, the First District had the following to say in regard to this question:

'We do not understand it to be the law of this state or of the United States, constitutional or otherwise, that one entitled to be furnished counsel at the expense of the state or its component parts may willy-nilly compel the courts to discharge competent and conscientious counsel duly appointed to provide him with legal services, or that he is entitled to the services of more than one attorney in the premises, or that he has the right to designate the attorney who shall be so employed to represent him.'

In Wilder, supra, the accused had moved the court to move his court-appointed the court to remove his court-appointed whom the accused had selected. The court passed upon the factual allegations which the defendant raised as grounds for discharge, and determined them to be insufficient. Although the court did not specifically so state, it could not have reached its result without first having decided that an accused is entitled to competent counsel when that counsel is court appointed. This must necessarily result by use of the language, 'conscientious and competent counsel' instead of merely 'counsel'. Further, the court decided this case by making the factual determination that the accused was being competently represented.

This decision was supported by the subsequent decision of the First District in Webster v. State, Fla.App.1963, 156 So.2d 890, 895, wherein the court ruled, inter alia:

'The motion to vacate asserts that appellant's court-appointed counsel 'conspiciously and deliberately misrepresent him' (sic). This random accusation is not supported by any competent allegation of fact. It is a bald conclusion of the pleader and must be rejected in the face of the unchallenged fact, as recited in the order appealed and indicated by the record on appeal, that counsel appointed by the court to represent appellant is an attorney experienced in the trial of criminal cases; * * *.'

Again, as above evidenced, the court denied the allegation on the factual basis that the accused was competently represented. The court was finding, as a matter of fact, that the accused's court appointed counsel was competent. It necessarily follows that if the finding had been the other way, the accused would have been entitled to some relief.

It therefore follows that it is proper to raise, via Criminal Rule 1, the incompetency of court-appointed counsel. The rule is not in conflict with the recent decision of this court in Everett v. State, Fla.App.1964, 161 So.2d 714. In Everett we held that an inquiry coudl not be made, via Rule 1, into the competency of counsel employed by a non-indigent, and that is the distinguishing point. Here the accused has no choice in the counsel who will represent him, and as a result he may suffer an injustice if this counsel is not competent, but when an accused retains his own counsel he waives the right to question the competence of that counsel. ¹

Our next inquiry must be into the factual requisites necessary for determining when, and under what circumstances, a court may find that an indigent accused has been, in effect, denied his right to counsel by virtue of the fact that such counsel was incompetent. It goes without saying that the test is not the result or outcome of the litigation.

Inasmuch as Rule 1 is an adoption of 28 U.S.C.A. § 2255, the Federal cases in this area are most helpful and entitled to our consideration.

In Frand v. United States, 301 F.2d 102, 103 (10th Cir. 1962), the court set out the proper method for resolving this issue:

'* * * [T]he constitutional right to the effective assistance of counsel does not vest in the accused the right to the services of an attorney who meets any specified aptitude test in point of professional skill. And common mistakes of judgment on the part of counsel, common mistakes of strategy, common mistakes of trial tactics, or common errors of policy in the course of a criminal case do not constitute grounds for collateral attack upon the judgment and sentence by motion under the statute [28 U.S.C.A. § 2255]. It is instances in which resulting from the substandard level of the services of the attorney the trial becomes mockery and farcical that the judgment is open to collateral attack on the ground that the accused was deprived of his constitutional right to effective assistance of counsel.' ²

Now that we have discovered what would amount to a deprivation of counsel by means of incompetence we must consider what specific activity on the part of a lawyer would result in a trial becoming a 'mockery or farcical' so that such an allegation, if proven, would constitute grounds for granting a new trial.

In Mitchell v. United States, 104 U.S. App.D.C. 57, 259 F.2d 787, 794 (1958), cert. den. 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86, Judge Prettyman writing for the court, stated:

'If a movant under Section 2255 makes no allegations of ineffectiveness or incompetence of counsel, save in matters normally within the realm of counsel's judgment, he is not entitled to a hearing. Under such circumstances a hearing would be useless, an inexcusable waste of time, energy and money, because even if the movant proved what he alleged he would not be entitled to relief.'

In regard to what constitutes 'judgment' the court said:

'Trial counsel must make many decisions of an almost infinite variety in the course of a criminal trial: whether to advise a plea to a lesser offense; whether to object; whether to offer a witness of possibly doubtful credibility or with a criminal record; whether to risk crystallizing the view of the judge at that point by a motion for directed verdict before the defense testimony is in; whether to advise the defendant to take the stand and subject himself to cross examination; how to argue the case to the jury; whether to advise the defendant not to go to...