Wilson v. State

• Decision Date: 22 April 1964
• Docket Number: No. 4225,4225
• Citation: 164 So.2d 43
• Parties: Norwood Lee WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 43

164 So.2d 43

Norwood Lee WILSON, Appellant, v. STATE of Florida, Appellee.

No. 4225.

District Court of Appeal of Florida, Second District.

April 22, 1964.

Robert E. Jagger, Public Defender, Joseph F. McDermott, Asst. Public Defender, Clearwater, for appellant.

James W. Kynes, Atty, Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

ALLEN, Judge.

This appeal occurs upon denial of appellant's motion to vacate and set aside a sentence imposed after conviction of the crime of burglary. The sole question presented is the sufficiency vel non of the evidence upon which the lower court based its finding that appellant had not been indigent at the time of arraignment and, had, in any event, intelligently, understandingly and competently waived the right to counsel. The evidence in question consists of the record of the original procedings and the testimony of nine witnesses heard during two days of hearings on appellant's motion.

Before proceeding to consideration of the determinative question, we pause to recognize and commend the procedure employed by the able trial judge in effecting disposition of appellant's motion. Despite an initial insufficiency of factual allegation which, under the Savage rule, ¹ could have sustained a summary denial of the motion and impelled affirmance of the denial, the trial judge chose to afford appellant every opportunity to prove his claim of constitutional right and set the matter down for hearing. Doubtlessly recognizing the potential difficulties a layman might encounter in proving a claim which might be deemed simple and uncomplex to those trained in the law and irrespective of the fact that the proceeding, although clearly involving imprisonment under criminal law, was 'civil' in nature, the trial judge appointed an attorney to assist appellant at the hearing and granted appellant every indulgence in the matter of amendment to his motion and continuance to secure witnesses. In fine, it is indeed to the credit of the trial judge that he 'forthrightly and realistically proceeded to meet [his] judicial responsibilit[y]' ² in disposing of a claim of constitutional right.

Turning to the essential issue with respect to the validity of the findings upon which the appealed order was predicated, attention should first be directed to the record of the arraignment. This brief minute entry recites:

'The above named defendant appeared before the bar in open court and after being advised by the court that he was entitled to counsel, trial by a jury, that a plea of guilty would be an admission of the truth of the facts alleged in the amended information, was asked by the court if he was represented by counsel to which he replied that he was not.' (Emphasis added.)

Significantly, this record contains no reference to indigency and is devoid of indication that inquiry as to appellant's ability to retain counsel was made. In fact, uncontradicted evidence adduced at the hearing and the consequent finding in the appealed order both indicate that the matter of indigency was not raised by the appellant nor was it the subject of inquiry by the court at the time of arraignment. Accordingly, the entire evidentiary base for one of the challenged findings, the determination that appellant was not indigent at the time of arraignment, is found in the evidence on point adduced at the hearing.

Noting that the State's brief does not contravene the appellant's argument that the evidence does not support a finding of non-indigency, we nonetheless have assiduously studied the transcript of the hearings and, while mindful of the presumption of correctness attributable to the finding, are constrained to conclude that it cannot be supported on the evidence made. In fairness to the trial judge, it should be observed that this issue was obscured somewhat by appellant's unfortunate and unfounded urgings of another claim, the resolution of which absorbed much of the court's time. ³

On the record the testimony of appellant and members of his family that he was destitute and without funds or assets to employ counsel is uncontradicted. There is evidence that appellant was employed prior to arrest and evidence that his wife owned certain personal property and had, in fact, secured bond for appellant, but this evidence of a wife's potential affluence and appellant's former employment does not contradict or overcome the direct testimony of insolvency. See Keur v. State, Fla.App.1963, 160 So.2d 546.

Conceding, as the record indicates, that appellant was not, in fact, represented by counsel at arraignment and sentencing, and conceding, as the proofs impel, that appellant was indigent at those times, relief under a theory of denial of the right to counsel was nonetheless precluded by the lower court's finding that appellant waived the right to counsel. See e. g. King v. State, Fla.App.1963, 157 So.2d 440. Accordingly, it is to the affirmative finding of waiver of the right to counsel that appellant's challenge and our attention is primarily directed.

The evidence offered by appellant in support of his contention that he did not waive the right to counsel consists of his own testimony that he was unaware of the right to appointed counsel; that a jailor informed him that he could get a lawyer only if he could afford one; that the court never advised him of the right to appointed counsel; and that he was never offered the services of counsel. In answer, the State offered the recitations of the original record, heretofore quoted, as proof that appellant had, in fact, been advised of the right to counsel. In addition, and/or as an alternative, the State sought to prove that appellant's sister (a co-defendant) had retained counsel to represent her and the appellant and, advised of this, appellant rejected the services of retained counsel.

Examination of the testimony of appellant's sister and the attorney retained by her reveals, in essence, the following facts. Appellant's sister retained James Parham, an attorney, to represent her and Billy Brown, a third co-defendant. Apparently, at her request, Parham agreed to represent appellant if appellant asked him to do so, if appellant pleaded guilty and if no conflict of interest between appellant and his sister arose. Parham never talked with appellant about this matter. Subsequently, appellant's sister informed Parham that appellant did not want Parham's services. Parham's testimony indicated that some hostility developed between appellant and his sister.

On the critical issue as to appellant's knowledge of the availability of Parham's services, appellant testified that his sister did not indicate to him that she had retained an attorney for him. Parham testified that his knowledge of appellant's refusal of his services was through the sister. Appellant's sister testified that she never asked appellant if he wanted Parham as counsel. Finally, both Parham and appellant's brother-in-law testified that mutual distrust and hostility existed between appellant and his sister.

Resolving any conflict in the testimony in favor of the State's position, the resulting facts indicate that appellant, hostile to and convinced that his sister was attempting to 'frame' him, was offered the services of a lawyer retained by and representing her, on condition that he plead guilty. Under those circumstances, his alleged rejection of this offer can scarcely be viewed as a waiver of the right of any representation in the felony prosec...