Smith v. State, 6772

• Decision Date: 02 December 1966
• Docket Number: No. 6772,6772
• Citation: 192 So.2d 346
• Parties: Richard E. SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 346

192 So.2d 346

Richard E. SMITH, Appellant, v. STATE of Florida, Appellee.

No. 6772.

District Court of Appeal of Florida, Second District.

Dec. 2, 1966.

Richard E. Smith, in pro. per.

Earl Faircloth, Atty. Gen., Tallahassee, for appellee.

BARNS, PAUL D., Associate Judge.

The appellant, defendant, Richard E. Smith, after having been found guilty by a jury, was adjudged guilty of uttering a forged check and duly sentenced; thereupon, he prosecuted this appeal. We affirm.

It appears that the defendant was taken into custody two or three days before Police Officer Carlisle interrogated him. He had been taken into custody as a suspect for armed robbery and was not a suspect for the crime he confessed to and found guilty of. His confession was a happenstance and occurred when Carlisle proceeded to interrogate him after advising him that he had 'a right to an attorney' and that he did not have to talk. Officer Carlisle got his lead to his guilt to offense of uttering the forged check by the fortuitous circumstances as follows:

(Officer Carlisle Testifying)

'Q Any promises of reward?

Q No, sir.

Q Okay, Detective Carlisle, what transpired at that time?

A I then asked him if he knew what I was going to talk to him about at which time he said, 'Yes, I do, about the checks I wrote on Mr. Boardman.'

I asked him if he knew Mr. Boardman. He said, 'Yes, I used to work for him at the theatre.'

He told me that he took the checks from Mr. Boardman's office, he went to his room and locked himself in the room for approximately four hours practicing to write them where he felt they were good enough to pass.

He then started crying to me the reason he did it. He hadn't seen his mother for three years and he needed to go to Philadelphia to see her and he left the city shortly thereafter.

I then called Sergeant Wachsmuth, had him come up to the fourth floor, which he did, at which time again Richard was advised of his right to counsel, this time by Sergeant Wachsmuth, where he repeated the same story.

Q Did you mention anything about the question of the name of Abraham Dowdell?

A Yes, he did. In reference to the name used as the payee, that in the THE WITNESS: After he used the Florida driver's license for identification, he placed the wallet containing the driver's license in an envelope and mailed it back to the address which was on the driver's license.'

theatre where he worked he found a wallet containing a Florida driver's license under the name of Abraham Dowdell. After he used this name--

Smith had worked around the theater and surreptitiously obtained blank checks used by the theater company and customarily executed by one Boardman; he took the blank checks and some cancelled checks. Previously, he had found a wallet in the theater containing a driver's license for one Dowdell; hence, having possession of genuine signatures of both Boardman and Dowdell he proceeded to master the art of simulating their genuine signatures. After having executed the check in question by signing the name Boardman as the maker, payable to Dowdell, he then proceeded to the bank to cash the forged check, using the signature of Dowdell on the driver's license to identify himself as Dowdell by his endorsing the check as Dowdell in the presence of the Teller. Smith got the money.

On this appeal, the only question raised by the assignment of error is whether evidence of the oral extrajudicial confession made to Officer Carlisle was freely and voluntarily made. It appears that Smith made no request for counsel, was fairly warned and was in no way coerced or unduly persuaded. The admission of evidence of the oral confession was not proscribed by Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, (decided June 22, 1964). The holding in Escobedo, supra, was expanded by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (decided June 13, 1966), but neither Escobedo nor Miranda is required to be applied retrospectively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 882 (1966). The case sub judice was tried on June 21, 1965.

The defendant was represented at trial by the Public Defender and after conviction and sentence the Public Defender was appointed by the court to represent the defendant in the prosecution of his appeal as an indigent. The Defender duly filed an assignment of error and directions to the clerk for the record on appeal. The record on appeal was properly completed and filed, including a one hundred twenty-two page transcript of the trial proceedings.

Thereupon, the Defender moved this court for leave to withdraw as counsel for the appellant on the ground that the appeal, in his opinion, was frivolous, which motion was granted and the appellant so notified. This left the appellant without counsel on this appeal, and he is still without counsel.

FRIVOLOUS APPEALS

The proceedings above recited and the proceedings we have noted in other cases before this court and reported decisions of other appellate courts, clearly indicate that there is a common belief among the Public Defenders, and others, that a convicted indigent defendant has a constitutional right to have the State furnish an attorney to Take a frivolous appeal. Cf. Morris v. State, Fla.App., 189 So.2d 901.

Doubtless, such view is an outgrowth of Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. The Douglas case, supra, does not support such construction; it held that the rule of criminal procedure followed in California which denied an indigent appellant the assistance of counsel requested by him in a Pending appeal failed to afford the indigent equal protection under the law. The California criminal procedure found to be 'invidious', as stated in the Douglas decision, was:

'In denying petitioners' requests, the California District Court of Appeal stated that it had 'gone through' the record (372 U.S. 355) and had come to the conclusion that 'no good whatever could be served by appointment of counsel.' 187 Cal.App.2d 802, 812, 10 Cal.Rptr. 188, 195. The District Court of Appeal was acting in accordance with a California rule of criminal procedure which provides that state appellate courts, upon the request of an indigent for counsel, may make 'an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. * * * After such investigation, appellate courts should appoint counsel if in their opinion it would be helpful to the defendant or the court, and should deny the appointment of counsel only if in their judgment such appointment would be of no value to either the defendant or the court.' People v. Hyde, 51 Cal.2d 152, 154, 331 P.2d 42, 43.

'We agree, however, with Justice Traynor of the California Supreme Court, who said that the '(d)enial of counsel on appeal (to an indigent) would seem to be a discrimination at least as invidious as that condemned in Griffin v. State of Illinois * * *.' People v. Brown, 55 Cal.2d 64, 71, 9 Cal.Rptr. 816, 357 P.2d 1072, 1076 (concurring opinion). * * *'

A reason for the need of the assistance of counsel in an appeal is fully appreciated by all appellate courts. Firstly, this professional service is needed in order that the record on appeal will be sufficiently complete and free of immaterial matter to enable the appellate court to know what occurred in the lower court that is material to the appeal. Secondly, this professional assistance is needed in designating judicial errors relied upon for reversal; and thirdly, the brief of counsel in support of the designated errors. The first and second items above mentioned are indispensable to a meaningful appeal and an orderly administration of the functions of appellate courts; and the briefs are highly beneficial in advancing a determination of merits of an appeal. These matters are not likely to be accomplished by an indigent incarcerated in prison without the assistance of counsel.

An appeal is the continuation of the original action and is not the commencement of a new action. Southern Title Research Company v. King, Fla.App.1966, 186 So.2d 539; State ex rel. Andreu v. Canfield, 1898, 40 Fla. 36, 23 So. 591, 42 L.R.A. 72. Hence, an attorney authorized by the defendant or the court to assist him in the defense of a prosecution has authority to appeal and no new order of court is required.

An attorney assisting an indigent defendant in a criminal case is yoked with a heavy duty, because of his professional value to the defendant and the defendant's helplessness contributed to by his indigency and imprisonment. State ex rel. White v. Hilgemann, 218 Ind. 572, 34 N.E.2d 129, was a proceedings brought by the relator to compel the court to appoint counsel to represent him in Taking an appeal after having been convicted of murder in the first degree; in granting relief, the court stated:

'From what has been said, we must conclude that one accused of crime has the right to be provided with counsel literally 'at every stage of the proceedings,' including the proceedings by which he may seek a...