Stanley v. State, 67--56

• Citation: 203 So.2d 31
• Decision Date: 13 October 1967
• Docket Number: No. 67--56,67--56
• Court: Florida District Court of Appeals
• Parties: Marvin Frazier STANLEY, Appellant, v. STATE of Florida, Appellee.

Page 31

203 So.2d 31

Marvin Frazier STANLEY, Appellant, v. STATE of Florida, Appellee.

No. 67--56.

District Court of Appeal of Florida, Second District.

Oct. 13, 1967.

Robert E. Jagger, Public Defender, and Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

This is an appeal by Marvin Frazier Stanley from an order entered by the Pasco County Circuit Court, denying without hearing a Petition to Vacate Judgment and Sentence filed by Stanley pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.

On September 15, 1965, Stanley was informed against in said Circuit Court for breaking and entering a dwelling house with intent to commit a felony. Upon arraignment he entered a plea of guilty to said charge and on September 27, 1965, he was adjudged guilty and sentenced to serve four years in the State Prison. On July 18, 1966, Stanley filed his Petition and Motion to Vacate aforesaid, and on December 16, 1966, the Circuit Judge entered Order, which, after reciting that the Court had 'reviewed the proceedings', denied the petition.

Stanley has appealed to this Court, contending merely that the Circuit Judge was in error 'in summarily denying the Petition for post conviction relief without affording a plenary hearing on the issues presented.' This is the verbatim 'Point on Appeal' filed by Stanley's Public Defender counsel.

Deciphering Stanley's petition as best we can, it alleged: that when he was arrested and incarcerated in the Dade City jail on August 18, 1965, he was uneducated and inexperienced in legal matters; that he was not represented by counsel at the time of his 'conviction'; that he had 'no fair opportunity to secure counsel'; that he pleaded guilty 'without a reasonable time to talk with a friend or an attorney'; that he 'did not fully understand and know' that he was pleading guilty; that he did not know he could be sent to prison as a result of his guilty plea; that he did not waive his right to Court appointed counsel when he pleaded guilty without the aid of counsel, even though he told the Court he didn't want counsel; that when he was first arrested he was held incommunicado for more than forty-eight hours and was interrogated by prolonged questioning by the Dade City Police during said time and was unable to contact or consult with any member of his family and was refused an attorney 'when he asked for one', as a result of which he confessed to said 'armed burglary'; that he later pleaded guilty because he 'felt it was no use to argue'; that when he confessed he had not been advised of his rights to remain silent; that he was never brought before a magistrate of any kind 'for the charge that was later placed against him'; that he did not 'intelligently and competently' exercise his waiver of counsel; that at the time of his Court appearance the trial Judge did not sufficiently inquire into the 'essential factors' necessary to determine 'the effectiveness of any supposed waiver of counsel'. We have examined and carefully reviewed these sometimes inter-related contentions aforesaid.

When such a motion under C.P.R. No. 1 is filed, it is incumbent upon the trial Court to examine the Court files and records in connection with the original prosecution to determine, first, the truth or falsity of the allegations thereof insofar as such records might reflect light thereon, and, secondly, evaluate the seriousness of such contentions so tested as indicating whether any of the petitioner's constitutional rights had been denied or abridged. At that point, as C.P.R. No. 1 says, '(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause * * *' a hearing to be had to 'determine the issues and make findings of fact and conclusions of law with respect thereto'. On the other hand, however, if the Court finds, from an inspection of the motion and files and records of the Court, that the petitioner's contentions are unfounded, either as a matter of law or by being conclusively refuted by the Court files and records, the motion may be summarily denied without hearing. Such determination is, of course, subject to appellate review, such as the case here.

A meticulous analysis of the record here, which contains everything that was before the lower Court, discloses each and every of the contentions set forth in the petition to be without substance, either because they had been held legally insufficient in previous adjudicated cases or because they were disproven factually when subjected to the strong light of the Court's own records. That is, all except one item, namely, whether there had been a waiver--i.e., an understanding, competent and intelligent waiver--by petitioner of his right to counsel at the time of his Court appearances. We will explore this contention more fully. The motion, of course, allowing for inexpert pleading, makes a strong case for the lack of an intelligent waiver. So we go to the Court files and records.

The recorded minutes of the Circuit Court for September 15, 1965, show the following on the occasion of Stanley's arraignment and plea:

'By the Court (Judge Kelly):

Stanley, do you wish to be represented by an Attorney?

Defendant (Stanley) No, Sir.

Court: If you don't have the funds, the court will appoint one.

Defendant: Yes, your Honor.

Court: Understanding this, do you want the Court to appoint an attorney?

Defendant: No, Sir.

Court: You do not have the funds?

Defendant: No, Sir.

Court: You don't want a lawyer?

Defendant: I understand that what the lawyer does and what I do about it might be substantially different.

Court: What is this man charged with?

Mr. McClain (Asst. State Attorney): Breaking and Entering

Court: What is the penalty?

Mr. McClain: Ten years.

Court: Do you realize by a plea of guilty you are subjecting yourself to a prison sentence of a least five years at hard labor? The State Attorney is going to read the information. If you don't understand it, say so and we will explain it to you.

Mr. McClain: Do you answer to the name of Marvin Frazier Stanley?

Defendant: Yes, Sir.

Mr. McClain: How old are you?

Defendant: Twenty-three.

(The Assistant State Attorney, Joe A. McClain, read the entire information).

Court: Do you understand the charge?

Defendant: Yes, Sir.

Mr. McClain: And to that charge, how do you plead, guilty or not guilty?

Defendant: Guilty.

* * *

* * *

(To defendant) (Has anyone promised you any kind of deal? Said--I know the Judge and he is going to let you off light or anything like that?)

Defendant: No, Sir.

Court: You are pleading guilty only because you are guilty.

Defendant: Yes, Sir. I am pleading guilty because of the fingerprints, I don't remember doing it. * * * Court: Do you know of your own knowledge you are guilty?

Defendant: No, Sir.

Court: Do you remember going into the place?

Defendant: Yes.

Court: What did you go in there for?

Defendant: I didn't got (sic) in there to commit nothing.

Court: After you got in there, what did you do?

Defendant: I guess I took that stuff I had with me in my trailer.

Court: Do you remember going in the place? Do you remember taking the stuff out of it?

Defendant: Yes, Sir.

Court: Do you remember taking it out and putting it in your trailer?

Defendant: Yes, Sir.

Court: Now is the time to say so if you don't.

Defendant: Yes, Sir.

Court: Are you guilty or aren't you?

Defendant: I am guilty.

Court: And you know you are guilty?

Defendant: Yes, Sir.

Court: Has anyone told you they are going to harm you or hurt you if you don't plead guilty?

Defendant: No Sir.

Court: You did so freely and voluntarily?

Defendant: Yes, Sir.' (Emphasis supplied).

The recorded minutes of September 27, 1965, show the following at the time of judgment and sentence:

'Court: Stanley, you came before this Court on September 15, 1965 and entered a plea of guilty and Refused counsel.

Defendant: Yes, Sir.

Court: You understand that as a matter of constitutional right you are Entitled to be represented by a lawyer. Is that correct?

Defendant: Yes, Sir.

Court: Understanding that, you refuse counsel?

Defendant: Yes, Sir.

Court: You understand that if you don't have the funds, the Court will hire one to represent you?

Defendant: Yes, Sir.' (Emphasis supplied).

This 2nd District Court, in an excellent opinion written by Judge Sherman Smith, had occasion to explore into this question in King v. State, Fla.App.1963, 157 So.2d 440. In that case the defendant King, 24 years old, had pleaded guilty to the offense of grand larceny, representing to the Court that 'no one had threatened him or promised him anything to get him to plead guilty, and that he understood that he could receive a trial if he wanted one.' He was adjudged guilty and sentenced to prison. About a year later he filed petition under C.P.R. No. 1, contending that when he entered his plea and was sentenced he did not have the assistance of counsel, he was not offered counsel, was not informed of his right to counsel, and that he was therefore denied his constitutional rights. He asked that the judgment and sentence be vacated and he be granted a new trial. The trial Court summarily denied the motion without hearing, from which order the defendant appealed. This Court, after reviewing Gideon v. Wainwright and other related cases, stated as follows:

'In each instance where an accused appears in court without a lawyer, the court should advise him of his constitutional right to the assistance of counsel and determine whether or not he is able to employ a lawyer to represent him. If the accused is unable to employ a lawyer, then the court must offer to appoint counsel to represent the accused. Of course, the accused may reject the offer, thereby waiving his constitutional right to the assistance of counsel. However, this waiver must be...