Yates v. State, V--194

• Decision Date: 30 June 1975
• Docket Number: No. V--194,V--194
• Citation: 317 So.2d 462
• Parties: Roy Junior YATES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 462

317 So.2d 462

Roy Junior YATES, Appellant, v. STATE of Florida, Appellee.

No. V--194.

District Court of Appeal of Florida, First District.

June 30, 1975.

Richard W. Ervin, III, Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

STOKES, ROBERT, Associate Judge.

Appellant was convicted of breaking and entering with intent to commit a misdemeanor and possession of a firearm by a convicted felon.

It is urged that the trial court erred in failing to provide counsel for the appellant and the deprivation resulted in a confession being unlawfully admitted into evidence against the appellant.

Appellant states that he requested counsel at his first appearance hearing some seventy two (72) hours after arrest, but one was not appointed until approximately sixty eight (68) days after his arrest.

Examination of the record clearly reflects that the appellant was taken before a magistrate prior to giving a statement. The motion to suppress filed in the lower court was not predicated on the absence of proper warning, or the delay and denial of counsel, but that the statement was in exchange for a promise that appellant would be placed in a cell with his younger brother whom he was worried about. This was refuted by the officers whom apparently the trial judge chose to believe, thereby finding the statements being made freely and voluntarily. In the case of Baker v. State, 225 So.2d 327 (Fla.1969), the Supreme Court rejected a claim similar to the case at bar citing to this Court's opinion in Lee v. State, 173 So.2d 520 (Fla.App.1st, 1965), saying:

'The record does not disclose why appellant did not elect to request an attorney until more than a month after his arrest. On the other hand, the record does clearly show that the trial court appointed an attorney for appellant immediately upon its becoming aware of his indigency and desire for counsel on January 30, 1967. Appellant's counsel, once appointed, filed several pre-trial motions, including motions testing the sufficiency of the indictment. Further, he represented appellant at the preliminary hearing at which time witnesses were presented for both the prosecution and the defense. After this hearing, he entered a 'not guilty' plea on behalf of his client. Appellant's counsel continued this able representation throughout the trial. Since appellant neither contends that he was denied the opportunity of exercising his right to seek the...