State v. Weeks, 32875

Citation166 So.2d 892
Decision Date04 March 1964
Docket NumberNo. 32875,32875
PartiesSTATE of Florida, Petitioner, v. John Matthew WEEKS, Respondent.
CourtUnited States State Supreme Court of Florida

James W. Kynes, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for petitioner.

John Matthew Weeks, in pro. per.

THORNAL, Justice.

We have for review a decision of the District Court of Appeal, Third District, regarding the respondent's entitlement to the assistance of counsel on appeal.

We must decide whether an indigent prisoner is entitled to the assistance of counsel as a matter of right upon an appeal from an adverse ruling in a collateral assault on his conviction and sentence.

The decision under review is Weeks v. State, Fla.App., 156 So.2d 36. The state has appealed and simultaneously petitioned for certiorari. The District Court has sua sponte certified its decision to us as one which 'passes upon a question * * * of great public interest.' We take jurisdiction of the petition for certiorari with the accompanying certificate of the District Court. Article V, Section 4(b), Constitution of Florida, F.S.A. Susco Car Rental System of Fla. v. Leonard, Fla. 112 So.2d 832. Our disposition of the cause makes it unnecessary to consider the appeal.

Weeks moved in the trial court under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix, to obtain collateral relief against his conviction and sentence for the crime of armed robbery. He was adjudicated insolvent. The trial judge denied the collateral relief sought. Weeks appealed the adverse ruling to the District Court. He requested the appointment of counsel to assist him in the appeal. By the decision under review the District Court held that Weeks had an absolute organic right to the assistance of counsel in his appeal. The state now seeks a reversal of the decision.

It should be noted with emphasis at the outset, that this was not a direct appellate assault upon the judgment of conviction. If it were, Weeks would have an organic right to the aid of counsel. Douglas et al. v. People of the State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Donald v. State of Florida, Fla.App., 154 So.2d 357. In these cases a direct appeal was regarded as a critical step in a criminal prosecution. In such situations an indigent appellant is entitled to the assistance of counsel by virtue of the provisions of the Sixth and Fourteenth Amendments, United States Constitution. A similar process of constitutional interpretation was applied to the right of an accused felon to have the assistance of counsel at the trial level. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The District Court in the instant matter was confronted with an appeal to review an adverse ruling in a proceeding entirely collateral to the original trial and conviction.

To meet the impact of Gideon this Court on April 1, 1963, promulgated its Criminal Procedure Rule 1. The rule was formulated as an effective, expeditious, post-conviction remedy to accomplish collateral assaults on judgments of conviction. Rule 1 is simply a Florida adaptation of Title 28, Section 2255, U.S.C.A. It provides a remedy co-equal with, but actually more expeditious than post-conviction habeas corpus. Roy v. Wainwright, Fla., 151 So.2d 825; Gideon v. Wainwright, Fla., 153 So.2d 299. Florida had anticipated the Gideon development and moved with dispatch to adapt its procedural facilities to the indicated increased demands for post-conviction relief against previously entered felony judgments. Roy v. Wainwright, supra. It is to the credit of the judges of Florida that they have forthrightly and realistically proceeded to meet their judicial responsibilities in the face of the demands which did materialize.

Returning, with more specific relevancy, to the issue at hand, we find that all three Florida District Courts of Appeal have held that an indigent is entitled, as a matter of right, to the assistance of counsel in obtaining a review of an adverse order entered under Rule 1, supra. They have reached this conclusion with some admitted reluctance. Weeks v. State, supra; Mullins v. State, Fla.App., 157 So.2d 701; Dias v. State, Fla.App., 155 So.2d 662; King v. State, Fla.App., 157 So.2d 440; Keur v. State, Fla.App., 160 So.2d 546. Similarly Understandably, the District Courts have rendered these decisions without the benefit of guideline precedents from this Court. They have done so by drawing an analogy to the right to counsel in original criminal proceedings under the rules of Gideon and Douglas, supra. Weeks v. State, supra, now under review, is typical. The fact remains, however, that there has been a failure to differentiate the organic entitlement to counsel in direct criminal prosecutions from the claimed right of assistance in collateral proceedings.

it has been held that an indigent is entitled to the assistance of counsel as a matter of right on a Rule 1 motion in the trial courts. Turner v. State, Fla.App., 161 So.2d 11; Hall v. State, Fla.App., 160 So.2d 527.

In administering relief in post-conviction habeas corpus, as well as under Title 28, Section 2255, supra, the federal courts have consistently drawn a distinction between the original criminal proceeding and the post-conviction collateral remedy. The Supreme Court of the United States held in Gideon that the right to counsel in the original proceeding derives from the absolute guaranty of the Sixth Amendment, United States Constitution 'to have the assistance of counsel' in all criminal prosecutions. The federal courts have held that post-conviction habeas corpus and proceedings under Section 2255, supra, are not steps in a criminal prosecution. On the contrary, they are in the nature of independent, collateral civil actions which are not clothed with the aspects of a 'criminal prosecution' under the Sixth Amendment. In view of the admitted similarity between our Rule 1 and Section 2255, we feel justified in applying the federal precedents to the situation at hand. This is so even though our Rule is designated for convenience as Criminal Procedure Rule #1. The designation was adopted to alert interested parties to its availability as a new procedural method for post-conviction relief. While it provides a process for assaulting a criminal judgment it is no more a step in a criminal prosecution than is post-conviction habeas corpus or a Section 2255 motion. The Florida rule provides for an independent, civil, collateral attack on a criminal court judgment. Its federal statutory ancestor, Section 2255, supra, has been construed to have the same effect.

Anderson v. Heinze, C.A. 9, 258 F.2d 479, is informative. It was there held that a federal habeas corpus proceeding to review a state conviction is civil, rather than criminal in nature. It does not require the appointment of counsel as a matter of right at either the trial or appellate level. It was held that counsel may be required to accomplish Fifth Amendment due process but is not an absolute right under the Sixth Amendment. The Court elaborated that Fifth Amendment due process would suggest the appointment of counsel if the papers filed by the indigent prisoner 'reveal a reasonable probability that an issue which is not plainly frivolous may be presented.' In the absence of a showing of such a probability, neither Fifth Amendment due process nor a sound judicial discretion requires such appointment. It is initially the responsibility of the trial court to examine the papers. If the judge finds that the application is totally lacking in merit or would be denied without a hearing in the event of a non-indigent applicant, then counsel is not necessary.

In numerous federal decisions it has been held that there is no organic entitlement to have the assistance of counsel as a matter of right in a post-conviction collateral proceeding under Section 2255. In these cases the proceeding was considered to be civil in nature, even though it involved an attack upon a criminal conviction. In such collateral proceedings the applicant has the burden of making a prima facie case by the allegations of his application. Of course, if a hearing is found necessary the applicant would similarly have the burden of proving his allegations. Davis v. United States, C.A. 7, 214 F.2d 594; United States v. Caufield, C.A. 7, 207 F.2d 278; United States v. Williamson, C.A. 5, 255 F.2d 512, cert. den., 358 U.S. 941, 79 S.Ct. 348, 3 Of further persuasion was the action of the Judicial Conference of the United States which classified in forma pauperis motions under Section 2255, as being civil in nature for purposes of docketing on the civil dockets of the federal courts. Proceedings of the Judicial Conference of the United States, 1962 p. 76. See also, Right to Counsel in Criminal Post Conviction Review Proceedings, Cal.Law Review, December 1963, Vol. 51, p. 970, pp. 978-984; Boskey, The Right to Counsel in Appellate Proceedings, Minn.Law Review, Vol. 45, p. 783.

L.Ed.2d 349; Estep v. United States, C.A. 5, 251 F.2d 579; Taylor v. United States, C.A. 8, 229 F.2d 826, cert. den., 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500. The Supreme Court of the United States has itself announced that post-conviction habeas corpus and motions under Section 2255, are independent original civil proceedings. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

The sum of the authorities is that post-conviction remedies of the type under consideration are civil in nature and do not constitute steps in a criminal prosecution within the contemplation of the Sixth Amendment, supra. They do not require the application of the standard of absolutism announced by that amendment. Such remedies are subject to the more flexible standards of due process announced in the Fifth Amendment, Constitution of the United States. This means that in these collateral...

To continue reading

Request your trial
119 cases
  • Woodard v. State
    • United States
    • Alabama Court of Appeals
    • February 2, 1965
    ...the opinions of Mr. Justice Thornal in Roy v. Wainwright, Fla., 151 So.2d 825, Gideon v. Wainwright, Fla., 153 So.2d 299, and State v. Weeks, Fla., 166 So.2d 892. Here the opinion of the court below has not led up to a judgment denying Woodard's petition on its merits. Rather, the order in ......
  • Bolds v. Bennett
    • United States
    • Iowa Supreme Court
    • June 11, 1968
    ...United States (7 Cir.), 371 F.2d 160, 165--166; People v. Shipman, 62 Cal.2d 226, 42 Cal.Rptr. 1, 397 P.2d 993, 996--997; State v. Weeks, Fla., 166 So.2d 892, 894--897; 50 Iowa L.Rev. 1073, 1084; Institute on Recent Developments in Criminal Law, March 8, 1968, co-sponsored by the Iowa State......
  • Howard v. Inch
    • United States
    • U.S. District Court — Southern District of Florida
    • October 18, 2021
    ...under the Fifth Amendment. Amended Motion at 20 (DE# 9, 5/3/21); see Graham v. State, 372 So.2d 1363, 1366 (Fla. 1979); State v. Weeks, 166 So.2d 892 (Fla.1964). Graham, the Florida Supreme Court held that there is no absolute duty to appoint counsel for an indigent defendant in a post-conv......
  • Whitney v. State, 65-401
    • United States
    • Florida District Court of Appeals
    • March 8, 1966
    ...without counsel are inadmissible evidence. Proceedings under Criminal Procedure Rule No. 1 have been held to be civil. See: State v. Weeks, Fla.1964, 166 So.2d 892; Barton v. State, Fla.App.1965, 176 So.2d 597. Principles of res adjudicata applicable to civil matters would prevent the same ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT