Surrette v. State

• Decision Date: 30 July 1971
• Docket Number: No. 70--824,70--824
• Citation: 251 So.2d 149
• Court: Florida District Court of Appeals
• Parties: Theodore Lewis SURRETTE, Appellant, v. STATE of Florida, Appellee.

Page 149

251 So.2d 149

Theodore Lewis SURRETTE, Appellant, v. STATE of Florida, Appellee.

No. 70--824.

District Court of Appeal of Florida, Second District.

July 30, 1971.

Richard H. Langley, Clermont, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Warren H. Petersen, Asst. Atty. Gen., Tampa, for appellee.

LILES, Acting Chief Judge.

This is an appeal from the denial of appellant's Rule 1.850, 33 F.S.A., motion to vacate and set aside sentence following an evidentiary hearing.

On February 8, 1968, appellant allegedly effected the premeditated murder of two persons in Pasco County. Appellant was subsequently charged on two counts with first degree murder. Prior to his arraignment and plea, the public defender's office, through Mr. Jack B. McPherson, was appointed to represent him. Mr. James J. Altman, a private attorney, was also appointed to assist in his defense. However, before the case went to trial, Mr. McPherson was appointed assistant state attorney and was replaced as appellant's counsel by Mr. Edwin J. Ford.

Following arraignment, appellant plead guilty to murder in the second degree on both counts. He was sentenced to life imprisonment on each count, and is now serving those sentences at the state prison.

On August 13, 1970, appellant filed a Rule 1.850 motion to vacate and set aside judgment and sentence in the Circuit Court of the Sixth Judicial Circuit. The circuit court held an evidentiary hearing and denied appellant's motion. Appellant now seeks review of the denial of his Rule 1.850 motion and assigns as error five points.

First, appellant urges that he is entitled to a new trial by the Mere fact that his original counsel, who had received knowledge of appellant's defense, became an assistant state attorney with the state attorney's office which prosecuted appellant. In support of this contention, appellant relies upon Jackson v. State, Fla.App.1970, 234 So.2d 708, and Young v. State, Fla.App.1965, 177 So.2d 345. In answering this contention, we first note that the record reveals that Mr. McPherson did not participate in the prosecution of the case against the appellant. The record also reveals that at the evidentiary hearing Mr. McPherson testified that at no time did he discuss this case with anyone in the state attorney's office or with any agent or representative of the State of Florida. This case is thus unlike the situation in Young v. State, supra. In Young the assistant state attorney Who prosecuted the defendant at the jury trial had previously been a member of the public defender's office which handled the defendant's defense. The court held there 'that when an attorney has been consulted by a criminal defendant, and later becomes a prosecutor in the Same case, the defendant is deprived of the substance of a fair trial and due process.' In the instant case, Mr. McPherson did not 'later become a prosecutor in the same case.' Thus the situation which existed in this case does not fit within the prohibited area of Young. It should also be noted that the question in Young was whether the prosecutor at the defendant's trial had previously served as his defense counsel while a member of the public defender's staff. The mere fact that the prosecutor had merely been with the public defender's office was of no consequence. This clearly indicates that the forbidden conduct is for an attorney to have been somewhat directly involved with both the defense and the prosecution of the same case.

In further support of this position, we note that the Supreme Court of Florida in Thompson v. State, Fla.1971, 246 So.2d 760, has ruled on the question 'whether employment of a co-defendant's counsel by the prosecution Per se creates a situation inherently violative of due process.' The court there held:

'The twofold prohibition enunciated in Bryan-- ¹ that a former defender turned prosecutor can neither act directly against his former client in a related matter, nor provide information or assistance for those who would so act--provides a logical answer to the abstract question. The standard for a prosecutor should also be the standard for his staff, and we so hold. Therefore, we find that employment of a former defender on the prosecution staff does not violate due process save where the two prohibitions set out above are violated.' (Emphasis added.)

In the instant case, Mr. McPherson, upon his becoming assistant state attorney, did not violate either of the two prohibitions. He neither acted directly against his former client nor provided information or assistance for those who would so act. Hence the mere fact, of and in itself, that appellant's original counsel became an assistant state attorney was not error.

Instead, both Young and Jackson establish that an evidentiary hearing is required to determine if there has been such a conflict of interest as to result in prejudice to the defendant. Such an evidentiary hearing was had in this case. As noted, Mr. McPherson testified that at no time did he discuss this case with anyone in the state attorney's office or with any agent or representative of the State of Florida. He further testified that he received by mistake a confidential psychiatric report but that he did not discuss this report with anyone except app...