Smith v. State, 63-882

• Decision Date: 27 May 1964
• Docket Number: No. 63-882,63-882
• Citation: Smith v. State, 168 So.2d 585 (Fla. App. 1964)
• Parties: William Lee SMITH, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 585

168 So.2d 585

William Lee SMITH, Appellant, v. The STATE of Florida, Appellee.

No. 63-882.

District Court of Appeal of Florida, Third District.

May 27, 1964.

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

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

Before BARKDULL, C. J., and CARROLL and TILLMAN PERSON, JJ.

PER CURIAM.

The appellant petitioned for relief pursuant to Criminal Procedure Rule I, F.S.A. ch. 924 Appendix. His petition was denied and this appeal followed.

The petition sets out the appellant's contention that he was (1) illegally arrested; (2) not granted a prompt preliminary hearing; (3) held incommunicado in jail for ten days; (4) denied his right to bail; (5) denied assistance of counsel at arraignment; (6) denied the right of trial by jury.

Of the grounds obove listed only the 5th and 6th need further consideration in this court inasmuch as none of the other grounds are alleged or shown by the record to have acted to deprive the appellant-defendant of the substance of a fair trial.

Ground No. 5 alleges that the appellant-defendant was denied due process because he did not have the assistance of the counsel at the time of his arraignment. At this arraignment he plead guilty and the date was set for his trial. At trial he was represented by the public defender. After the taking of testimony, he was adjudged guilty and sentenced. We find nothing in this record to indicate that because counsel was not present at the arraignment, the defendant was deprived of due process. If counsel representing him at the time of the trial had determined that appellant would be better served by a plea of not guilty, a motion to withdraw the plea of guilty could have been made. Sardinia v. State, Fla.App.1964, 162 So.2d 328. See Banks v. State, Fla.App.1962, 136 So.2d 25; Cf., Harris v. State, Fla.1964, 162 So.2d 262.

Appellant's allegation No. 6 that he was unconstitutionally denied his right to a trial by jury, is refuted by the record. By entering a plea a guilty the appellant eliminated any purpose for a jury trial. No one denied him his right to a jury trial; by his plea of guilty he waived the right.

Affirmed.

CARROLL, Judge (dissenting).

My dissent in this case is limited to disagreement with the holding of the majority regarding the ground of the motion which the opinion refers to as a contention by the appellant that he was 'denied assistance of counsel at arraignment.' The problem is whether arraignment, which is not a critical stage in the trial process (Ex parte Jeffcoat, 109 Fla. 207, 146 So. 827) becomes so if the defendant pleads guilty when arraigned without counsel.

Preliminary to discussion of that question it should be noted the motion filed by the appellant made no express contention with reference to denial of counsel at arraignment. The majority viewed the general language of the motion as being sufficient to announce that contention. If the motion states it, it does so through grounds 5 and 6, which are as follows:

'Defendant alleges, on March 17, 1961, he was adjudged guilty and judgment and sentence imposed without the benefit and assistance of counsel for his defense at the trial court.'

'Defendant alleges, from the date of arrest, February 28, 1964, to the date of sentence, March 17, 1961, he did not orally, writing or anywise consent to waiver the benefit and assistance of counsel for his defense at the trial court.'

Accepting the foregoing as a contention by the defendant that he was deprived of due process through not being represented by counsel at his arraignment, there is a further preliminary consideration of whether the contention was clearly refuted on the record. At the hearing on the motion in the trial court there were statements by the clerk and by the assistant state attorney that the defendant had a lawyer who received a copy of the information on March 8, 1961, two days before the arraignment, but other than their statements the record does not so reflect. The record does show that the public defender acted as counsel for the defendant at the time he was presented for sentence on the basis of his guilty plea, which may be referred to loosely as the 'trial.'

Therefore, this matter must be dealt with as a contention by the defendant that he was without a lawyer; that he was indigent and unable to employ one; that he was denied by the court the right to have a lawyer represent him at the arraignment; and that he pleaded guilty when arraigned. The majority opinion affirmed the action of the trial judge in rejecting this ground of the motion, and based its holding on the proposition that 'If counsel representing him at...