State v. Barton, 34991

• Decision Date: 04 January 1967
• Docket Number: No. 34991,34991
• Citation: State v. Barton, 194 So.2d 241 (Fla. 1967)
• Parties: STATE of Florida, Petitioner, v. William Eugene BARTON, Respondent.
• Court: Florida Supreme Court

Page 241

194 So.2d 241

STATE of Florida, Petitioner, v. William Eugene BARTON, Respondent.

No. 34991.

Supreme Court of Florida.

Jan. 4, 1967.

As Amended on Petition for Clarification Jan. 25, 1967.

Earl Faircloth, Atty. Gen., and John S. Burton, Asst. Atty. Gen., for petitioner.

J. Robert McClure, Jr., of Fokes, Peeples & McClure, Tallahassee, for respondent.

DREW, Justice.

The decision of the district court in this cause together with that in another proceeding reaching a contrary result is presented upon a certificate finding that they pass upon a question of great public interest within the constitutional intendment. ¹ This question is defined only as 'relating to the showing which must be made by a movant and reflected by the court records before he is entitled to be heard by the sentencing court on the allegations of his motion for relief,' under Criminal Procedure Rule I, F.S.A. ch. 924 Appendix.

The motion filed by the respondent Barton, quoted in full in the dissenting opinion below, ² asserts that he and his co-defendants were 'not represented in the best of our interest' and were 'not given counsel of our own choice.' The movant sets forth no particulars of the 'substantial grounds to prove our innocents' which he contends counsel could have secured if he 'had our interest at heart,' but states only that he was not 'given counsel of which would take the necessary steps to avoid the possibility of a future prison term ie. counsel that would advise we the defendants here in such a way as to avoid making a statement which might later be used as evidence against us in court.'

The order of the trial court recited service of notice of hearing on the motion upon the prosecuting attorney and found that 'the grounds upon which the motion is filed do not warrant the production of the prisoner at the hearing.' Upon consideration of the original record of conviction the order further 'finds from the record in this cause that defendant was ably represented by court appointed counsel * * * at the time he plead guilty to the offenses * * *; that movant presents no basis, details or clarification of his allegation that if the Public Defender had been appointed 'he would have been able to secure substantial grounds to prove our innocents'; that such allegations are not substantiated by the facts in the court proceedings and appear to have no merit, and movant is not entitled to the relief requested.'

The original record of the convictions in this case reflected the formal appointment of counsel on the same date on which the informations were filed, the defendants arraigned, and pleas entered. Upon examination of the record the appellate court concluded that the above order must be reversed for the taking of evidence on the issue of whether counsel studied and 'made an adequate investigation of each of such charges before pleading appellant guilty.' On this issue the motion to vacate asserts only that the defendants were 'not represented in the best of our interest.' The conclusion of the appellate court is that this motion required a scrutiny of the record, which in this case shows, as above noted, that counsel was appointed on the same date defendant plead guilty to multiple charges of breaking and entering and larceny occurring over a two-month period in the area where he was tried.

We think the appellate court reversal and remand for submission of evidence as to the Adequacy of legal representation in these circumstances is necessarily based on a conclusion that the record itself, showing the defendant had counsel appointed only on the day of arraignment and plea, presents that issue and requires further evidence for disposition. Certainly the contention on appeal that defendant's lawyer never conferred with him, if in fact such was directly asserted, ³ cannot affect the question of whether any factual issue was presented by the bare statement in the motion herein that defendant was not represented 'in the best of (his) interest.'

We are of the opinion that the appellate court in this case erred in reversing, and that the trial court complied with the requirements of the rule and properly concluded that the motion to vacate the sentences, upon the record before him, presented no factual allegations justifying a further hearing on the issue of whether the defendant had effective counsel within the constitutional due process requirements. The rule provides that a motion thereunder requires a hearing and findings of fact 'unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * *.' ⁴ This provision, however, is designed primarily to prescribe the standard governing the disposition of a motion, without a hearing, on the ground of record refutation of a movant's allegations, and to require, for example, that the record in an appropriate case show Conclusively that a movant alleging to the contrary did in fact have counsel or make waiver. We think the issue, even in the case of a proper motion on the rationale outlined in the opinion below, would be that of Opportunity for study or investigation rather than actual performance of those duties by counsel. ⁵ Where, as in this case, the record affirmatively reflects such opportunity, then no hearing should be required absent allegation of other facts material to the issue.

The provision of the rule, by its literal terms and apparently under uniform construction in the federal courts, does not eliminate the basic requirement that such motions set forth facts, rather than conclusions, showing the basis of relief in order to warrant a hearing to determine the truth or falsity of such facts. ⁶ The most liberal of our decisions regarding sufficiency of allegations in habeas corpus, preceding the current rule, support this minimum requirement. ⁷

Upon consideration of the history and construction of the statute ⁸ upon which our rule is patterned, we conclude that record facts such as those involved in this case should raise no inference either as to lack of effective representation or invalidity of the plea of guilty upon which the convictions rest. To the contrary, the decisions favor a strict construction of this ground for post conviction relief. ⁹ The limitation of time alone, or the consequent necessity for a motion for continuance, appears in the circumstances of this case to be one of the numerous matters resting in the judgment and discretion of counsel in the handling of a defense, ¹⁰ and the propriety of a ruling on these matters is of course subject only to direct appellate review in the normal course of events. ¹¹

In collateral proceedings generally, then, an allegation that counsel was appointed on the date of or at the inception of trial would not, contrary to the statements in some of the recent decisions, ¹² be sufficient on its face. While the controlling principles will naturally vary with the facts of each case in which the claim of ineffective counsel arises, the test in evaluating allegation or proof on the issue should remain that of determining not merely the length of time allowed for preparation but whether the limitation of time, together with other facts or ensuing events, was such as to deprive the defendant of a trial in any real sense.

The writ is issued, the decision of the district court herein is quashed, and the cause remanded for further proceedings in accordance with this opinion.

THORNAL, C.J., CALDWELL and ERVIN, JJ., and WAYBRIGHT, Circuit Judge, concur.

1 State v. Barton, D.C.A.1st, 182 So.2d 655, McCray v. State, D.C.A.1st, 181 So.2d 729.

2 Ibid., 182 So.2d p. 657. Honorable J. Robert McClure, Jr., counsel for respondent in this cause, was appointed by this Court to represent respondent solely in these certiorari proceedings as well as in the consolidated case of McCray v. State, no. 35,138, 194 So.2d 246. In such capacity he has rendered valuable service to the respondent and this Court. The deficiencies in the proceedings below occurred long before Mr. McClure entered the case.

3 Such a fact stated in the motion would however, present an issue different from that of alleged insufficiency of time, unless in context the latter meaning was clearly intended. See Simpson v. State, Fla.App., 164 So.2d 224.

4 Rule 1, Florida Rules of Criminal Procedure, Vol. 23, F.S.A.

5 Simpson v. State, Fla.App., 164 So.2d 224.

6 United States v. Trumblay, C.A.7 1958, 234 F.2d 273, 275, and 256 F.2d 615, cert. den. 358 U.S. 947, 79 S.Ct. 355, 3 L.Ed.2d 353; United States v. Mathison, C.A.7 1958, 256 F.2d 803, cert. den. 358 U.S. 857, 79 S.Ct. 77, 3 L.Ed.2d 91; Walker v. United States, C.A.7 1955, 218 F.2d 80; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. 'General allegations that the defendant was ineffectively represented by counsel are insufficient unless they are accompanied by a detailed statement of such a factual situation which, if established, would show that the representation of counsel was of such a kind as to reduce the trial to a farce or a sham and to shock the conscience of the court.' United States v. Edwards, D.C., 152 F.Supp. 179, 185.

7 Wood v. Cochran, Fla.1960, 118 So.2d 193. See also Wooten v. State, Fla.App.1964, 163 So.2d 305.

8 Sec. 2255, Title 28 U.S.C.A.

9 Cases collected United States v. Wight, C.A.2, 176 F.2d 376, 379.

'For these reasons we think absence of effective representation by counsel must be strictly construed. It must mean representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and to correct it. We do not believe that allegations even of serious mistakes on the part of an attorney are ground for habeas corpus standing alone. The cases where the Supreme Court has granted habeas corpus on the ground that there was no fair trial support this interpretation of...