Wall v. Purdy, Civ. No. 70-573

Decision Date20 January 1971
Docket Number70-1324,70-1217 and 70-1454.,Civ. No. 70-573
Citation321 F. Supp. 367
PartiesMack J. WALL, Petitioner, v. E. Wilson PURDY, Director of Public Safety, Dade County, Florida, Respondent. George Perlman ALVIS, Petitioner, v. William G. KIMBROUGH, Chief of Police of Coral Gables, Florida, Respondent. Martha GRIFFIN, Petitioner, v. Charles GOODLETT, Chief Belle Glade Police Department, Belle Glade, Florida, Respondent. John W. HICKS, Petitioner, v. Robert JOHNSTON, Chief of Police of the City of Fort Lauderdale, Respondent.
CourtU.S. District Court — Southern District of Florida

Bruce S. Rogow, Legal Services Program, Miami, Fla., for Mack J. Wall.

Howell L. Ferguson, Legal Services Program, Miami, Fla., for George Perlman Alvis.

B. R. Patterson, Fla. Rural Legal Services, Inc., Belle Glade, Fla., for Martha Griffin.

No appearance for John W. Hicks.

Jack R. Blumenfeld, Asst. State Atty., Miami, Fla., for E. Wilson Purdy.

Robert D. Zahner, Asst. City Atty., Coral Gables, Fla., for William G. Kimbrough.

John E. Baker, Belle Glade, Fla., for Charles Goodlett.

A. R. Morsillo, City Prosecutor, Ft. Lauderdale, Fla., for Robert Johnston.

ORDER DENYING PETITIONS FOR WRITS of HABEAS CORPUS.

MEHRTENS, District Judge.

These cases each present the ever recurring question whether the Sixth Amendment right to counsel extended to the states through the Fourteenth Amendment is applicable to all misdemeanors.

All petitioners have petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254.

Petitioner Mack J. Wall was convicted in the Metropolitan Court in and for Dade County for failure to make an immediate report of an accident in violation of Section 30159.1 of the Metro Court. The maximum possible penalty is 60 days or $250 or both. He received a sentence of 15 days and $150 fine.

Petitioner George Perlman Alvis was convicted in the Municipal Court in and for Coral Gables, Florida of willfully disturbing the peace in violation of Section 21-12 of the Coral Gables City Code, and also for resisting arrest in violation of Section 20-4 of the Code. The maximum punishment was 60 days or $250 or both on each charge. He was sentenced to 60 days on each charge, making a total of 120 days.

Petitioner Martha Griffin pled guilty to a violation of Chapter 17, Section 11 of the Code of Ordinances of the City of Belle Glade, Florida (public drunkenness), and pursuant to said plea was sentenced to 5 days in jail or a fine of $25.00 plus $5.00 court costs. Thereafter, three weeks later, petitioner pled guilty to a charge of escape from the Belle Glade City Jail and was sentenced to 30 days in jail or a fine of $150 plus $5.00 court costs, the sentences to run consecutively, making a total of 35 days.

Petitioner John W. Hicks was convicted for public intoxication in the Municipal Court of Fort Lauderdale, Florida. He likewise was convicted of contempt of court on two occasions. He was sentenced to 30 days for public intoxication, 30 days for the first contempt, and 30 days for the second contempt, making a total of 90 days.

Each of the petitioners attacks the validity of his sentence, asserting that he was not advised of his right to counsel, that he was not represented by counsel, and that no counsel was provided for him, all in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

Any possible uncertainty about the right to counsel if charged with a felony was put to rest by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The only significant limitation of Gideon is found in the concurrence by Mr. Justice Harlan: "The special circumstances rule" (wherein the facts underlying the particular case will be examined to determine how important the presence of an attorney would be) "should be applied to offenses which carry the possibility of a substantial prison sentence." In Patterson v. State, 227 Md. 194, 175 A.2d 746, the defendant was convicted of misdemeanors having a maximum penalty of 2 years or $1000 fine. The lower court refused to appoint counsel because the charges were not "serious" within the statutory definition. The State Supreme Court affirmed. On certiorari, Patterson v. Warden Maryland Penitentiary, 372 U.S. 776, 83 S.Ct. 1103, 10 L.Ed.2d 137, the judgment was vacated and the case remanded for further consideration in the light of Gideon. Thus the Supreme Court has held that the right to counsel extends to felonies and "serious" offenses. Since those decisions in 1963, however, courts have been wrangling about whether the language used there is sufficiently inclusive to make mandatory the appointment of counsel in all misdemeanor cases or whether it is limited to felony and other serious charges. The Supreme Court of the United States has not yet settled the question.

From a pragmatic point of view, courts cannot help but struggle to find some rational, fair line beyond which the absolute right to counsel becomes merely a privilege to be provided in the sound discretion of the trial judge. Although the administration of criminal justice is cloaked in abstract principles, these principles are seriously jeopardized if the system breaks down under the sheer weight of the demands which it imposes.

The right to counsel for misdemeanants has had an erratic and ambiguous history in the Federal Courts, and in particular the Fifth Circuit. See Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965); McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed. 2d 491; James v. Headley, 410 F.2d 325 (5th Cir. 1969); Goslin v. Thomas, 400 F.2d 594 (5th Cir. 1968); Bohr v. Purdy, 412 F.2d 321 (5th Cir. 1969); Shepherd v. Jordan, 425 F.2d 1174 (5th Cir. 1970).

The Fifth Circuit in passing upon how far the absolute right to counsel extends has refused to formulate a definite rule but has indicated that the safeguard extends to some misdemeanors cases, recognizing that there are some offenses where one would not be entitled to the services of an attorney at the expense of the state.

Thus, in Harvey v. Mississippi, supra, the defendant, without being advised that he was entitled to counsel, pled guilty and was sentenced to the maximum punishment of 90 days and a $500 fine for possession of whiskey, a misdemeanor. The court held that the plea had "grievous consequences" and that the defendant was unconstitutionally convicted because of the failure to advise him that he was entitled to be furnished counsel, quoting approvingly from Evans v. Rives (1942), 76 U.S.App.D.C. 242, 126 F.2d 633.

Thereafter in McDonald v. Moore, supra, the Fifth Circuit re-affirmed its position in Harvey v. Mississippi where upon similar facts the defendant was sentenced to six months in jail or $250 fine. The court, however, specifically commented:

"* * * It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the services of an attorney at the expense of the state or the municipality. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state. If the Constitution requires that counsel be provided in such cases it would seem that in many urban areas there would be a requirement for more laywers than could be made available. Even with the assistance of law students, whose services may be requested under some of the Criminal Justice plans, the demand might come near exceeding the supply."

In Goslin v. Thomas, supra, Goslin was convicted, without the aid of counsel, of theft and given a six months maximum sentence. Thereafter, without counsel, a previous suspension of a two-year sentence for battery was revoked, and thereafter Thomas escaped from jail but was quickly recaptured on two separate occasions. For the first escape he was sentenced to 60 days in jail, and for the second escape he received the maximum one-year sentence. In neither of these trials was he offered or furnished counsel. The lower court specifically held (Petition of Thomas, D.C., 261 F.Supp. 263) that under Harvey and McDonald, Gideon must be applied to all criminal cases. The Fifth Circuit stopped short of this holding, stating that the only question was whether the right to counsel under the Sixth and Fourteenth Amendments extended to state misdemeanor cases.

In Matthews v. State Purdy et al., 422 F.2d 1046 (5th Cir. 1970), Matthews was tried on three occasions for three separate offenses involving violation of traffic ordinances without being advised of his right to counsel. Because of discrepancies in the record as to whether the maximum sentence on each charge was 30 days and a $250 fine or 60 days plus a $500 fine and $50 court costs or an additional 56 days for each conviction, the court was unable to effect a final disposition and remanded the case, saying:

"One final point deserves our brief consideration. In computing the total potential penalty which may be imposed on a defendant, we suggest that the trial court not only consider the maximum possible sentence and fine under each charge, but also any additional sentence which might be imposed if the fine is not paid. As our opinions indicate, this procedure gives a much more accurate representation of the gravity of charges facing a defendant —especially an indigent defendant."

This Court in Brinson v. State, 273 F.Supp. 840 (S.D.Fla.1967), made an attempt to set out what would be a proper test to be applied in cases involving the constitutional right to counsel by distinguishing between "petty offenses" on the one hand and misdemeanors or felonies on the other hand. Thereafter the same question arose in James v. Headley, supra, where state defendants were each charged with a number of petty offenses bearing maximum penalties of 60 days in jail for each but subjecting them to a total sentence of 600 days and 240 days. This Court again adopted the reasoning in Brinson...

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