Vagner v. Wainwright

• Decision Date: 07 May 1981
• Docket Number: No. 56201,56201
• Citation: 398 So.2d 448
• Parties: Richard VAGNER, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
• Court: Florida Supreme Court

Page 448

398 So.2d 448

Richard VAGNER, Petitioner, v. Louie L. WAINWRIGHT, Respondent.

No. 56201.

Supreme Court of Florida.

May 7, 1981.

Murray M. Wadsworth and William H. Davis of Wadsworth & Davis, Tallahassee, for petitioner.

Jim Smith, Atty. Gen., and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for respondent.

BOYD, Justice.

This cause is before the Court on petition of a state prisoner for writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(6), Fla.Const.

Petitioner Richard Vagner was convicted of aggravated assault, aggravated battery, and two counts of kidnapping. He was sentenced to four three-year prison terms, to be served concurrently. Vagner sought a writ of habeas corpus from the United States District Court for the Middle District of Florida, claiming that his privately retained attorney rendered ineffective legal assistance at trial. The court granted respondent's motion to dismiss for failure to exhaust state remedies, reasoning that, "No recent decisions of the Florida Supreme Court ... indicate that that Court would be unwilling to reconsider the question of ineffective assistance of privately retained counsel in light of the recently established federal law on the question." Vagner v. Wainwright, 473 F.Supp. 436, 439 (M.D.Fla.1979).

Petitioner took an appeal of that decision to the Fifth Circuit Court of Appeals. Meanwhile, he filed the instant petition in this Court. We initially denied the petition on February 26, 1979. While our decision was pending on rehearing, the United States Court of Appeals remanded the federal cause to the district court for consideration of the merits. Vagner v. Wainwright, 597 F.2d 770 (5th Cir. 1979) (unpublished opinion).

On July 16, 1979, this Court appointed counsel for petitioner and set the case for oral argument on the merits of the petition on rehearing. In accordance with our decision to reconsider the merits of Vagner's claim, the Fifth Circuit withdrew its prior order and affirmed the federal district court's dismissal for failure to exhaust state remedies. Vagner v. Wainwright, 599 F.2d 1053 (5th Cir. 1979) (unpublished opinion).

Petitioner asserts that his lawyer at trial rendered inadequate representation. In support of this argument he points to a number of specific instances of inaction on the part of the lawyer. Petitioner was represented by privately retained counsel of his own selection. Before we reach the question of whether petitioner was denied the effective assistance of counsel and, if so, decide what relief he is entitled to, we must dispose of a preliminary question: whether the ineffectiveness or incompetence of privately retained counsel constitutes a basis for challenging a conviction in the courts of Florida.

The respondent agrees with petitioner that we should answer this threshold question in the affirmative. Respondent, in its efforts to have the federal habeas corpus action dismissed for failure to exhaust state remedies, argued that this Court would be willing to consider ineffectiveness of retained counsel as a ground for collateral attack on the judgment of conviction. In accordance with its position taken there, the respondent moved for rehearing of this cause and urges that we recede from Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967). In Cappetta, the Court said, "It has been held ... that one may not contest the competency of privately retained counsel." Id. at 610.

This statement from Cappetta has been the basis for numerous decisions of the district courts of appeal declining to consider the issue of competence of retained counsel in appeals from denials of post-conviction relief. Farmer v. State, 366 So.2d 1271 (Fla. 4th DCA), cert. denied, 378 So.2d 344 (Fla.1979); O'Quinn v. State, 364 So.2d 775 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979); Crespo v. State, 339 So.2d 697 (Fla. 3d DCA 1976); Staples v. State, 298 So.2d 545 (Fla. 2d DCA 1974); State v. Pinto, 273 So.2d 408 (Fla. 3d DCA), cert. dismissed, 283 So.2d 367 (Fla.1973); Humphries v. State, 232 So.2d 23 (Fla. 1st DCA), cert. denied, 237 So.2d 752 (Fla.1970); Belsky v. State, 231 So.2d 256 (Fla. 3d DCA 1970); Brown v. State, 223 So.2d 337 (Fla. 3d DCA), cert. denied, 229 So.2d 866 (Fla.1969), cert. denied, 397 U.S. 969, 90 S.Ct. 1009, 25 L.Ed.2d 262 (1970); Byrd v. State, 220 So.2d 14 (Fla. 3d DCA 1969); Frizzell v. State, 213 So.2d 293 (Fla. 2d DCA 1968); Ford v. State, 210 So.2d 33 (Fla. 2d DCA 1968). The rule has also been applied when the issue of incompetence of retained counsel was raised on appeal of the judgment of conviction. Dickenson v. State, 261 So.2d 561 (Fla. 3d DCA 1972). The Court in Cappetta did not discuss the rationale for the rule there embraced; the holding derives from a number of pre-Cappetta decisions. Williams v. State, 177 So.2d 736 (Fla. 1st DCA 1965); Coyner v. State, 177 So.2d 715 (Fla. 3d DCA 1965); Todd v. State, 176 So.2d 344 (Fla. 2d DCA 1965); Amaral v. State, 171 So.2d 549 (Fla. 3d DCA 1965); Simpson v. State, 164 So.2d 224 (Fla. 3d DCA 1964); Everett v. State, 161 So.2d 714 (Fla. 3d DCA 1964).

In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the United States Supreme Court held that in a state prosecution involving the possibility of imposition of a penalty of death, the due process clause of the fourteenth amendment requires the provision of effective, as opposed to merely formal, representation by legal counsel. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the Court held that the sixth amendment provides the accused in federal prosecutions a right to the effective assistance of counsel. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Court held that the sixth amendment right to counsel was incorporated into the due process clause and would apply to the states in all felony prosecutions. In Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969), the Court said, "Once it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice,' ... the same constitutional standards apply against both the State and Federal Governments."

Thus it is clear that the accused in a state prosecution is entitled to the effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In light of this established constitutional principle, the Cappetta doctrine cannot now be viewed as stating that there is no such right. Its continuing vitality as a source of authority for the denial of consideration of claims of ineffectiveness of retained counsel must rest upon some other ground.

One asserted ground for the rule is that "the defendant by retaining his own counsel has waived any right to attack the competency of his counsel as a ground for post-conviction relief." State v. Garmise, 382 So.2d 769, 771 (Fla. 3d DCA 1980), overruled, Blatch v. State, 389 So.2d 669 (Fla. 3d DCA 1980). This waiver rationale, however, breaks down when analyzed in light of the fact that persons accused of crime usually are not in a position to evaluate in advance the skills of lawyers available for their selection and retention. See United States v. Marshall, 488 F.2d 1169 (9th Cir. 1973). Furthermore, the United States Supreme Court has held that a waiver of a fundamental right in the context of a criminal prosecution must be knowing and intelligent, judged by a strict standard. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1972). Judged by such a strict standard, it cannot be said that one who retains counsel of his own choosing has waived the right to effective assistance of counsel by doing so.

Other decisions applying the Cappetta doctrine suggest a different rationale for the rule. When retained counsel is incompetent and thereby delivers ineffective advocacy, so the argument goes, there is no court ruling or decision, no state statute or procedural rule that can be said to have resulted in the denial of the right. There is no state complicity in the circumstances resulting in the denial. Where counsel is court-appointed and paid by the state, on the other hand, there is state involvement in any incompetence later exhibited.

This "state action" rationale was utilized by the United States Court of Appeals, Fifth Circuit, in Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975). There the court fashioned a dichotomous test distinguishing retained from appointed counsel and distinguishing two standards of competence depending on whether the sixth amendment or the due process clause is said to have been violated. On the authority of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), we reject any "state action" rationale for distinguishing claims of ineffectiveness of retained counsel from those relating to appointed counsel.

In Cuyler v. Sullivan, a state prisoner sought habeas corpus relief in federal district court on the ground that his sixth amendment rights were violated because his retained trial counsel had represented conflicting interests. In the course of deciding whether a state trial judge must inquire into the propriety of multiple representation in the absence of an objection and whether the mere possibility of a conflict of interest constitutes deprivation of the right to counsel, the Court considered the state's contention that the performance of retained defense counsel cannot provide the basis for relief because it does not involve state action.

"A state prisoner," the Court said, "can win a federal writ of habeas corpus only upon a showing that the state participated in the denial of a fundamental right protected by the Fourteenth Amendment." Id. 100 S.Ct. at 1715. The sixth amendment right to counsel is fundamental, but the prisoner's assertions of conflict of interest did not ...