Young v. State, 5604

• Decision Date: 16 July 1965
• Docket Number: No. 5604,5604
• Parties: Bobbie William YOUNG, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 345

177 So.2d 345

Bobbie William YOUNG, Appellant, v. STATE of Florida, Appellee.

No. 5604.

District Court of Appeal of Florida, Second District.

July 16, 1965.

Robert E. Pyle, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.

SHANNON, Acting Chief Judge.

This is an appeal from an order denying without a hearing appellant's motion for post conviction relief pursuant to the provisions of Criminal Procedure Rule No. 1, F.S.A. ch. 924, Appendix.

Represented by a public defender, the appellant had been tried by a jury and convicted of committing a lewd and lascivious act in the presence of a minor child. He was sentenced to serve a term of from six months to eight years in the State Prison. No appeal was taken from this conviction.

After the time for filing an appeal had elapsed, the appellant petitioned for relief under Criminal Procedure Rule 1. The petition stated in part:

'Movant respectfully submits that his constitutional rights were infringed upon at his trial, in that the Assistant State Attorney who prosecuted him at jury trial, Allen Allweiss, had previously been a member of the Public Defender's Office, which office handled movant's defense at said Jury Trial. The said Allen Allweiss, while a member of the Public Defender's office had occasion to interview and interrogate this Movant for purposes of said Movant's defense. This movant's rights were greatly prejudiced by having made statements in preparation for his defense to one who later prosecuted him for said offense.'

The state attorney filed a motion in reply, admitting that Allweiss formerly had been a member of the public defender's office and that he had been the prosecutor at the appellant's trial, but denying that Allweiss had interviewed the appellant while a public defender.

The trial court denied appellant's petition in an order stating that it affirmatively appeared that the defendant was entitled to no relief. It is from this order that appeal is taken, the appellant arguing that in light of Rule 1 requirements he is at least entitled to a hearing on his petition. We agree, because under Rule 1 the trial court must grant a hearing '[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' (Emphasis added).

In reaching our decision we have faced two issues: (1) whether the allegations would, if true, establish that the appellant had been denied due process of law, thus rendering the judgment void; and (2) whether the failure to appeal the conviction precludes this collateral attack on the judgment via Rule 1.

In regard to the due process issue, we find the general rule to be that when an attorney has had dealings with a defendant as a defense counsel and later becomes a prosecutor in the same case, a conviction thereby obtained must be reversed. E. g., State v. Leigh, 1955, 178 Kan. 549, 289 P.2d 774; State v. Burns, Mo.1959, 322 S.W.2d 736; and 52 A.L.R.2d 1286. In State v. Leigh, supra, the defendant and his wife had several conversations with an attorney who eventually decided not to represent the defendant. Subsequently, this attorney was elected county attorney and prosecuted the defendant for the same offense which he had discussed with him. Although the prosecutor said that he did not remember any of the facts which had been related to him by the defendant or his wife and that he never actually agreed to represent the defendant, the court reversed the conviction. In its opinion the court said:

'An attorney cannot be permitted to participate in the prosecution of a criminal case if, by reason of his professional relations with the accused, he has acquired knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith.' 289 P.2d at 777.

In State v. Burns, supra, the defendant retained an attorney who later was elected prosecuting attorney and 'discontinued' his representation of the defendant. The defendant's trial was prosecuted by an assistant who was told nothing about the case by the prosecutor. The Missouri Supreme Court reversed the conviction and observed that: 'We might well hold that the conduct of the trial in the manner here complained of constituted a deprivation of due process.' State v. Burns, supra, 322 S.W.2d at 742. Similarly, it has been held that where a conflict of interest appears, the reversal of a conviction is required even if the defendant is unable to identify specific prejudicial acts on the part of the prosecutor. State v. Detroit Motors, 1960, 62 N.J.Super. 386, 163 A.2d 227; and State v. Burns, supra.

The Florida decision closest in point is this court's holding in Todd v. State, Fla.App. 2, 1965, 176 So.2d 344. (Filed June 11, 1965). In Todd the defendant was represented by counsel of his own selection at arraignment and trial. After the trial, but before judgment and sentence, Todd's counsel was appointed assistant state attorney. We held that the defendant was not deprived of due process because he was given an opportunity to request disqualification of the state attorney or any of his assistants at the sentencing. Todd had employed another attorney, and after conferring with him, expressly waived the tendered disqualification. Under these circumstances we held that the defendant was not entitled to post conviction relief.

Todd is distinguishable from the present case on two grounds: (1) Todd's defense counsel was appointed assistant state attorney after the defendant's trial, whereas, the same attorney who interviewed the appellant here prior to trial was the prosecutor for the state at the trial; and (2) the record showed that Todd, upon the advice of his own counsel, intelligently waived any possible disqualification, while in the case before us there is only the implied waiver of failure to appeal. It...