Wainwright v. Simpson, 23074.
Decision Date | 11 April 1966 |
Docket Number | No. 23074.,23074. |
Parties | Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Appellant, v. Clarence SIMPSON, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
James G. Mahorner, Asst. Atty. Gen., Earl Faircloth, Atty. Gen., Tallahassee, Fla., for appellant.
Tobias Simon, Miami, Fla., Maurice Rosen, No. Miami Beach, Fla., for appellee.
Before PHILLIPS,* RIVES and COLEMAN, Circuit Judges.
In the Circuit Court for Dade County, Florida, a jury found Clarence Simpson guilty of murder in the first degree but recommended mercy. On May 23, 1962 he was sentenced to life imprisonment. He had been represented by counsel chosen originally by his family but appointed by the Court when Simpson and his family became unable to pay. Counsel deliberately failed to move for a new trial or to file a notice of appeal, although he considered that meritorious grounds were present. He further failed to advise Simpson of such grounds or of the jurisdictional time limitations within which a motion for new trial or notice of appeal might be filed.
Some time later Simpson filed a motion for relief under Florida Criminal Rule 1, F.S.A. Ch. 924, app., alleging that he was denied his constitutional right to counsel, in that the court-appointed counsel was incompetent. The State trial court denied his motion without a hearing and the Third District Court of Appeal of Florida affirmed. Simpson v. State, 1964, 164 So.2d 224. He then filed in the federal district court a petition for habeas corpus. After a full hearing, the district court adjudged:
An order of this Court entered more than four months before the hearing of this appeal provided:
The appellant now argues that the district court "had no jurisdiction to rule on the denial of appeal question made the basis for the granting of relief to petitioner-appellee because the statutory requirement that such question be first presented to the Florida courts had not been met." The reference is, of course, to 28 U.S.C.A. § 2254. There are several answers to this contention. The appellant concedes in brief that upon trial he "did not argue that the district court had no jurisdiction to consider the petition." (Appellant's Brief, p. 2.) Accordingly, the district court found that, "The State of Florida agreed that this issue was raised by the application for Habeas Corpus, and at the hearing of this matter did not argue to this Court that said issue was not timely and justiciable or within this Court's jurisdiction to consider." Appellant challenges that finding as contrary to the following paragraph in a memorandum brief filed by the respondent in the district court:
"The possibility is suggested to this court that the petitioner has never specifically alleged in any state court that his trial counsel negligently failed to prosecute his appeal."
Such a half-hearted "suggestion" of a "possibility" clearly does not suffice to overcome the district court's finding that there was no reliance on any claimed failure to exhaust state remedies. Further, Simpson's motion under Florida Criminal Rule 1, upon which he was never accorded a hearing, was broad enough to encompass his trial counsel's failure to move for a new trial or to file a notice of appeal. In any event, it is now settled that "the exhaustion principle is a matter of comity, not a matter of jurisdiction."1
In Florida, as in Illinois, appellate review has now become an integral part of the state trial system for finally adjudicating the guilt or innocence of a defendant.2 One appealing from conviction for crime must be represented by counsel if his appeal is to be meaningful.3 However laudable his motive, court-appointed counsel for Simpson had no authority, without consulting with or obtaining the consent of his client, deliberately to forego Simpson's right to move for a new trial or to appeal.4 When he did so, counsel proved himself ineffective. More, he completely abdicated his function and deprived Simpson of the aid of any counsel at a critical stage of the criminal proceeding.5
Thus the absence of aid of counsel has deprived Simpson of his right to move for a new trial and to appeal. It does not follow, however, without more ado, that Simpson must be granted a new trial. It would seem that Florida has provided an effective post-conviction remedy which may be used for full review of claimed errors in cases where a defendant has been unconstitutionally denied his right to appeal.6
Reversed and remanded.
I concur in the Judgment but avail myself of the opportunity to comment on some of the language contained in the opinion.
I refer first to the statement, "it is now settled that `the exhaustion principle is a...
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