State v. Youngblood, 37281

• Decision Date: 17 December 1968
• Docket Number: No. 37281,37281
• Citation: 217 So.2d 98
• Parties: STATE of Florida, Petitioner, v. James Otis YOUNGBLOOD and Willie Frank Campbell, Respondents.
• Court: Florida Supreme Court

Page 98

217 So.2d 98

STATE of Florida, Petitioner, v. James Otis YOUNGBLOOD and Willie Frank Campbell, Respondents.

No. 37281.

Supreme Court of Florida.

Dec. 17, 1968.

Rehearing Denied Jan. 6, 1969.

Earl Faircloth, Atty. Gen., and James T. Carlisle, Vero Beach, for petitioner.

Leonard L. Stafford, Asst. Pub. Defender, Broward County, Fort Lauderdale, for Willie Frank Campbell.

Leroy H. Moe, Hollywood, Fla., for James Otis Youngblood.

THORNAL, Justice.

By petition for certiorari we have for review a decision of a district court of appeal which allegedly conflicts with a decision of this Court on the same point of law. Fla.Const. art. V, § 4, F.S.A.; Youngblood v. State, 206 So.2d 665 (4th Dist.Ct.App.Fla.1968).

We are confronted by a claim of alleged fundamental error because of failure to appoint separate counsel for indigent codefendants.

Respondents Youngblood and Campbell were charged with robbery. They were represented jointly at the trial by a single court-appointed lawyer. Following conviction they appealed to the District Court of Appeal, Fourth District. That Court sua sponte raised the question of the propriety of representation of the two defendants by a single attorney although error had not been assigned on that point. However, the District Court regarded the failure as a fundamental error that would support reversal even though the point had not been made at trial nor raised on appeal.

Jurisdiction for certiorari is laid here with the claim that the decision under review conflicts with the decision of this Court in Baker v. State, 202 So.2d 563 (Fla.1967).

Although the District Court relied on Baker v. State, supra, that case and this are distinguishable. Baker did not involve the fundamental error problem. There, objection to joint counsel was raised at the trial and expressly saved for appellate review. Here, it was not. However, subsequent to the decision in the instant case the Court of Appeal, Third District, decided Belton v. State, 211 So.2d 238, 239 (3d Dist.Ct.App.Fla.1968), and the Court of Appeal, First District, decided Rogers v. State, 212 So.2d 367 (1st Dist.Ct.App.Fla.1968). In the instant case, the Fourth District decided that the alleged error was fundamental, that is that reversal could be based upon it even though the point was not made at trial. In the cases mentioned for conflict the First and Third Districts held otherwise. The Court of Appeal, Second District, in Dunbar v. State, 214 So.2d 52 (2d Dist.Ct.App.Fla.1968), has joined Belton and Rogers. The decision under review is, therefore, in jurisdictional conflict with the decisions of the other three districts.

We have approved the decision of the District Court in Belton v. State, supra, by our opinion dated December 17, 1968, 217 So.2d 97. We there held that failure to appoint separate counsel for co-defendants is not error in the absence of a request therefor or a showing of prejudice. Dunbar v. State, supra, is currently pending here on a certificate of public importance raising the problem of whether Baker v State, should be accorded retroactive application.

We, therefore, find jurisdictional conflict between the Fourth District in Youngblood and the First, Second and Third Districts in Rogers, Dunbar and Belton respectively.

It is important to place the problem at hand in proper focus. We do not here deal with the total deprivation of counsel. The mere fact of total deprivation of counsel is presumptively prejudicial. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and on remand Gideon v. Wainwright, 153 So.2d 299 (Fla.1963). See also, Harris v. State, 162 So.2d 262 (Fla.1964), where we discussed the deprivation of counsel impact reflected by Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). The matter of joint or separate counsel for jointly tried co-defendants is an aspect of the broader problem involving the Effective assistance of counsel. Baker v. State, supra, 202 So.2d at 565. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), two co-defendants were jointly represented by the same lawyer. Glasser objected and pointed to potential conflicts and prejudices. His co-defendant, Kretske, filed no objection and made no showing of prejudice. The United States Supreme Court reversed as to Glasser, but affirmed as to Kretske. Obviously, if joint representation of co-defendants by the same lawyer Necessarily results in prejudice, the court could not have reached different results for Glasser and Kretske. The decision in Glasser is literally saturated with the need to show some prejudice following from the joint representation. The Court will not weigh or evaluate the quantum of prejudice if harm to an accused is demonstrated. The fact remains that every joint representation of co-defendants by the same lawyer does not, standing alone, automatically require a reversal. Prejudice does not presumptively follow joint representation as it does total deprivation of all representation by counsel.

The District Court here held that failure to object to joint representation did not constitute a waiver of the right to effective assistance of c...