Webster v. State, E-251

• Decision Date: 17 October 1963
• Docket Number: No. E-251,E-251
• Citation: 156 So.2d 890
• Parties: Elijah WEBSTER, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 890

156 So.2d 890

Elijah WEBSTER, Jr., Appellant, v. STATE of Florida, Appellee.

No. E-251.

District Court of Appeal of Florida, First District.

Oct. 17, 1963.

Elijah Webster, Jr., in pro. per.

Richard W. Ervin, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for appellee.

STURGIS, Chief Judge.

The appellant, appearing pro se, appeals from an order of the Circuit Court of Escambia County, Florida, denying his motion under Criminal Procedure Rule No. 1 to vacate judgments of conviction and sentences imposed in two independent prosecutions for the crime of rape. In one of such prosecutions, identified as No. 43645, the judgment was entered and sentence imposed pursuant to trial by jury and verdict of guilty, with recommendation for mercy. In the other prosecution, identified as No. 43644, appellant entered a plea of guilty and upon being adjudged guilty as charged, the state attorney recommended mercy. Sentence to imprisonment in the state prison for life was imposed in each case.

Appellant was adjudged insolvent and was represented at the trials in the lower court by court-appointed counsel. He was permitted to file this appeal without being required to pay the usual filing fee and was furnished all court records demanded by him incident to this appeal. It does not appear, however, that he has made any effort to be provided with counsel for any purpose connected with said motion to vacate the judgments of conviction or on this appeal. He acted pro se in these proceedings.

On March 24, 1963, appellant initiated a collateral attack upon said judgments and sentences by filing in the trial court a pleading designated 'Motion for Writ of Habeas Corpus,' in exact form as follows:

'I

'Motion for writ of habeas corpus and to vacate, set aside sentence, judgment and conviction upon the grounds they are void (ab inito) and in (toto) as is authorized under Rule No. (1), of the Florida Rules of Criminal Procedure [31 F.S.A.] (opinion filed in the Supreme Court of Florida on April 1, 1963 A.D. and under the Florida Statue sec. 902.01, 909.21, 901.06, 921.24 [F.S.A.] and under the 7th, 6th and 14th Amendments of the Constitution of the United States, and under Article (16-sec. 30) of the Florida constitution

'To the Honorable Clerk of the First Judicial Circuit Court, in and for Escambia, County Florida.

'II

'Come now the movant Elijah Webster Jr. in proper person and respectfully moves the court as follow:

'On or about March 17, 1961, A.D. movant was tried and convicted by a twelve man, all (white) jury, in the First Judicial Circuit Court, in Escambia, County Florida, on a bill of information charging him with the crimes of rape upon two difference negro women.

'At the time of (preliminary examination) movant appeared in court without legal counsel, or legal aide, and requested the court to appoint counsel to present legal argument, and to defend him. Movant was financially unable to obtain counsel in his own behalf, the court refused to appoint counsel for the movant. As required in all capitial offenses. (Sec. 909.21 Fla.Statue.)

'Thereafter movant conducted his own defense in (preliminary examination), which is open court to the best of his knowledge, and was bond over to the First Judicial Circuit Court, wherein he was then arraigned and appointed counsel for his defense, who conspiciously and deliberatly misrepresent him, and was convicted by the jury for the said offense, and also enter a plea of guilty, after being advised to do so by appointed counsel. The court imposed a term of natural life in the state prison upon both charges.

'III

'Basic of Motion

'This motion is based upon the remedial provisions of the recent Rule 1, adapted by the Supreme Court of Florida as afore captioned.

'And under the Constitution of the United States, (Amends-6th, 7th, and 14th, and the Constitution of Florida, (Statues 909.21) 920.05, 921.24, 932.37, 932.36, and 901.06. And the (Act of Unnecessary Delay. (Sec. 916.01).

'Under these new Rules of Criminal Procedure the court of original jurisdiction is the proper court to initiate proceedings which attack the constitutionally of any conviction heretofore had in said court of original jurisdiction.

'Movant bases his motion upon the recent decision of the United States Supreme Court in the case of Clarance E. Gideon-vs-Louie L. Wainwright, Director of Division of Correction State of Florida [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799], (Misc.Doc. #155 October Term 1962, A.D. and upon the Florida Statue 1961, A.D.

'IV

'The substance of the United States Supreme Court ruling in the Gideon's case (supra) was to the effect that where a person accused of crimes (especially a felony) appear in court without an attorney and makes known to the trial court that he is indigent and financially unable to employ counsel, that the trial court must appoint counsel to represent the accused. In instant case movant made known to the trial court his poverty, lack of funds, or ways and means with which he could employ counsel, and (requested the court to appoint counsel) which is mandatory in all capitial cases.

'Movant requested counsel and his request was arbitrarily and capriciously denied in total, disregards of movant's constitutional rights to counsel. And is more fully dealt with in the Gideon's case (supra) Movant also made known to the court of the conspiracy of the arresting officier. The he was abducted by the said arresting officier, and also kidnapped, and held to answer to threats, and violence which caused him to sign a confession which prejudiced him in court.

'Movant was filled with spiritual terror, and in fear for his life when this confession was signed.

'Movant also charges that the said arresting committed fraud, perjury, and violence, threats, which caused movant to commit an abnormal act against himself.

'Movant also charges the aforesaid court with ommission in movant's behalf, and in justic.

'Jurisdictional statement

'Pursuant to the Constitution of the United States, and the Constitution of Florida, and the newly adapted Rule of Criminal Procedure in the state of Florida, this court has jurisdiction to entertain this meritorious cause of action under the afore said rules.

'Motion Now Made

'Movant has shown by an abundance amount of proof (de hors) the records that he has shown proves he has been denied due process of law (e; e) deprived of rights secured him under the 6th, 7th and 14th Amendment of the Constitution of the United States those rights being the right to a fair trial and the right to legal counsel.

'Wherefore movant prays legal and lawful recognition of his constitutional rights to redress to the extent that the illegal and unlawful term of imprisonment heretofore imposed in this court on the 17th day of March, 1961, A.D. be vacated and set aside and held to be of no legal force or effect, further that the judgment of conviction, entered therein; also be explunged from the records; further that movant be ordered discharged from his illegal term of imprisonment.'

The trial court treated the above as a motion under Criminal Procedure Rule No. 1--as indeed it is--to vacate said judgments and sentences, did not require the production of the appellant at the hearing on the motion, and on May 24, 1963, entered the following order denying same:

'This cause is before the Court upon the motion of Elijah Webster, Jr. to vacate the judgments and sentences imposed against him in the above entitled prosecutions on March 16, 1961.

'In disposing of this motion, the Court will take judicial knowledge of the Court's records relating to said trial procedure.

'The defendant, a member of the colored race, was indicted by the Grand Jury of Escambia County, Florida, on February 7, 1961. The indictment, No. 43489, charged in two counts the defendant with the crime of rape of two different females, each of whom are also members of the colored race. On February 13, 1961, the defendant was adjudged to be insolvent and, at his request, Charles Wilson, also a member of the colored race, was appointed as counsel for the defendant. Charles Wilson was and is a member of the Bar of the First Judicial Circuit, experienced in the trial of criminal cases.

'On February 16, 1961, the defendant, through his counsel, filed a motion to quash the indictment. The motion was argued on February 17, 1961, and an order was entered granting said motion to quash.

'Thereafter, on March 6, 1961, the Grand Jury of said county returned against the defendant indictments numbered 43644 and 43645, each charging the defendant with the crime of rape upon the females named in the original indictment. On March 7, 1961, the defendant with his counsel appeared in Court and announced ready for arraignment, and upon arraignment, a plea of not guilty as to each indictment was entered by the defendant.

'By agreement of the State Attorney and defendant's counsel trial date for the defendant on the charge contained in indictment No. 43645 was set for March 14, 1961. On said date the State and the defendant announced ready for trial, and a jury of twelve citizens were selected, accepted by the State and the defendant, and were duly sworn to try the issue.

'The Court takes note of defendant's allegations that he was tried by an all white jury. This Court takes judicial knowledge of the fact that for the past fifteen years the Jury Commission of Escambia County, Florida, has included the names of qualified negro citizens of said county in jury lists prepared by it, and that from time to time such negro citizens have served both as Grand and Petit Jurors in the Circuit Court of said county.

'During the progress of the trial the defendant's counsel challenged the admissibility of defendant's alleged confession. All questions relating to the validity thereof were thoroughly explored and presented to the jury for determination under appropriate instructions.

'The trial resulted in a jury...