Nelson v. State (208 So. 2d 506, 1968)

BARNS, PAUL D., Associate Judge.

On an information the appellant was charged, tried and convicted of conspiracy, robbery and assault, when represented by the public defender. He was sentenced on September 24, 1964, and no appeal was taken. On July 14, 1966, the defendant filed a post-conviction motion for relief which motion was denied after a full evi-dentiary hearing with the defendant present and represented by the public defender. In addition to denying relief the court held the defendant in contempt for wil-fully filing a sworn false motion for relief and sentenced the defendant to be imprisoned in the county jail for one year and pay a fine of $500.00 in default of which he would be confined for an additional period of sixty days. Thereupon, the defendant appealed from both judgments. We affirm.

Appellant’s attorney has failed and neglected to state in his brief the assignment of error relied on for reversal, but we find that his first point argued comes within the scope of his first assignment: that “the Court erred in denying Defendant’s Motion to Vacate and Set Aside Judgment and Sentence * *

At the conclusion of the evidentiary hearing the lower court denied the motion but failed to “make findings of fact” as prescribed by Rule 1, ch. 924, App., F.S.A. At the conclusion of an evidentiary hearing for post-conviction relief the trial judge should make findings of fact as prescribed by the rule. Appellant argues that he was denied effective assistance of counsel when his attorney failed and refused to take an appeal.

NATURE OF POST-CONVICTION MOTION FOR RELIEF

As stated in Tolar v. State, Fla.App.1967, 196 So.2d 1, 3:

“Post-conviction motions for relief collaterally attacking judgments and sentences under Criminal Procedure Rule No. 1 are basically in the nature of writs of error coram nobis. The federal counterpart to Criminal Procedure Rule No. 1 is § 2255 of Title 28, U.S.C.A., from which Rule 1 was modeled. Austin v. State, Fla.App.1964, 160 So.2d 730. As stated by the late Honorable John J. Parker concerning § 2255: ‘This motion is in the nature of an application for a writ of error coram nobis and is merely declaratory of existing law [cases cited].’ 8 F.R.D. 171, 175. The Reviser’s Note to § 2255, supra, states:

“ ‘This section restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus. * * * ’

“Annotation references: 96 L.Ed. 244; 20 A.L.R.2d 976. * * *

“Since § 2255 and Rule 1 were both for the purpose of meeting the same kind of practical problems encountered in habeas corpus proceedings, and since Rule 1 is almost literally the same as § 2255, a reading of United States v. Hay-man, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232, is necessary for an understanding of the history, purpose and construction of both. * * * ”

To the same effect, Lee v. State, Fla.App.1967, 204 So.2d 245.

WANT OF EFFECTIVE ASSISTANCE OF COUNSEL-FAILURE TO APPEAL-

The defendant had a constitutional procedural right of appeal, but the failure of the indigent’s attorney to appeal from a judgment of conviction is not sufficient, when standing alone, to raise a constitutional question collaterally; there must be a clear showing of a plain reversible error in the trial proceedings. Mitchell v. United States, 1958, 103 U.S.App. D.C. 97, 254 F.2d 954, on a motion under 28 U.S.C. § 2255, held:

“His present counsel, appointed by the District Court, contends that because trial counsel did not appeal, trial counsel did not give the defendant the ‘effective assistance’ to which he was entitled. The defendant says his trial counsel refused to appeal because the defendant could not pay him a fee. But such a refusal, in the circumstances of this case, is not a ground for vacating the sentence.

“It has been said that ‘failure to appeal may not he excused upon a mere showing of neglect of counsel.’ Dennis v. United States, 4 Cir., 177 F.2d 195. Perhaps that statement is too broad. We need not now decide whether failure to appeal would be a denial of effective assistance, and would open a conviction to ‘collateral attack’ under § 2255, if there were plain reversible error in the trial. There was no such plain error in this trial.”

Holdings to the same effect: Taylor v. United States 4 Cir. 1949, 177 F.2d 194; Dennis v. United States, 4 Cir. 1949, 177 F.2d 195; Owsley v. Cunningham, D.C. Va.1961, 190 F.Supp. 608; United States v. Peabody, D.C.Wash.1958, 173 F.Supp. 413. The question of the lack of effective assistance of counsel is well stated in Dodd v. United States, 9 Cir. 1963, 321 F.2d 240:

“Many of the grounds often asserted to sustain lack of effective assistance of counsel do not justify a hearing or entitle a petitioner to relief. Of such character are contentions as to the ‘competence of counsel.’ See Kennedy v. United States, (5 Cir., 1958) 259 F.2d 883, 886, cert. den. 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982; the ‘quality of a defense’ or matters of ‘counsel’s judgment, Mitchell v. United States (supra 259 F.2d [787] at 794); ‘general statements expressing dissatisfaction with trial results,’ Frand v. United States, (10 Cir., 1961) 289 F.2d 693, 694; or ‘a matter of trial strategy,’ McDonald v. United States, (9 Cir., 1960) 282 F.2d 737, 740, 741.

“To justify the vacation of a criminal judgment it seems clear that the showing at the hearing must be that the ‘attorney’s conduct was so incompetent that it made the trial a farce,’ Black v. United States, (9 Cir., 1959) 269 F.2d 38, 42; cert. den. 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357; Latimer v. Cranor, (9 Cir., 1954) 214 F.2d 926; (habeas corpus); Mitchell v. United States (supra). Washington v. United States, (9 Cir., 1962) 297 F.2d 342; cert. den. 370 U.S. 949, 82 S.Ct. 1597, 8 L.Ed.2d 815, requires a showing that the trial was a ‘farce and mockery of justice, shocking to the conscience of the court.’ (297 P.2d p. 344); to the same effect Stanley v. United States, (9 Cir., 1957) 239 F.2d 765.

“Kennedy v. United States, (5 Cir., 1958) 259 F.2d 883; cert. den. 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, requires a showing of

“ ‘misconduct of his counsel amounting to a breach of his legal duty faithfully to represent his client’s interests * * *’ (259 F.2d p.886).

“But in the case at bar one of appellant’s contentions is that his attorney failed to file a timely notice of appeal after being instructed to do so. Failure or refusal of counsel to file notice of appeal has been a frequent contention of petitioners in Section 2255 proceedings. In a recent case, Rivera v. United States, (9 Cir., May 28, 1963) 318 F.2d 606 (footnote 4) we did not reach the problem since it was raised for the first time in the briefs on appeal.

“We think Fay v. Noia, (1963) 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 and Rule 37, Rules of Criminal Procedure, have an impact on this problem, but before discussing their effect we review briefly the current case law.

“We summarize the cases in the margin. They demonstrate generally the following principles:

“(1) failure to appeal may not be excused by a mere showing of neglect of counsel;

“(2) relief will be denied where there was a knowing or calculated decision not to appeal;

“(3) in any event there would have to be the additional showing of ‘plain reversible error at the trial’ in order for relief to be granted.” (Footnotes omitted.)

The reason, or ratio decidendi, for holding that the defendant must show, and prove by a preponderance of the evidence, plain reversible error at trial is because after conviction it is presumed that the trial was regular and fair and that his counsel served him faithfully and competently. The right of an indigent defendant to the assistance of counsel in a criminal prosecution is basic and fundamental. The accused enjoys the presumption of innocence and a fair trial requires the assistance of counsel unless waived. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. However, on an appeal by a convicted defendant he is on a different footing. The defendant no longer enjoys the advantage of the presumption of his innocence on appeal and the state on appeal has the advantage of the presumption that the trial was regular and without harmful error as to the defendant. McIntosh v. Commonwealth, Ky. 1963, 368 S.W.2d 331.

The defendant’s right to an appeal “as a matter of right” is granted by the Constitution, § 5(3), Article V, F.S.A., State ex rel. Callahan v. Michell, Fla.1964, 170 So.2d 290, Crownover v. Shannon, Fla.1964, 170 So.2d 299.

Neither due process nor equal protection require an appeal or that an indigent convicted of crime shall have as of course the services of an attorney provided by the state to take an appeal. Such a requirement would be the cause of many frivolous appeals which would cause congestion and retard the speedy administration of justice. No attorney is required in the discharge of his duty to a client to take a frivolous appeal or one which he justly believes without merit. However, if having represented one as counsel at trial in a criminal case, he believes harmful and prejudicial error to have occurred by reason of which he believes a reversal on appeal is likely or probable for good reason, he should so advise his client and prosecute an appeal unless the defendant wishes otherwise; and, of course, when success on appeal would likely result in a new trial which, in turn, might result in a more severe penalty, the appeal should only be taken with consent and approval of the accused after he has been fully advised.

As to the effective assistance of counsel required to be given to an indigent defendant and post-conviction relief for the lack thereof, Lewis v. United States, 1961, 111 U.S.App.D.C. 13, 294 F.2d 209, states:

“So the question is simply whether the Constitutional right to counsel is denied when trial counsel are of opinion that no grounds for appeal exist and so do not note an appeal. Obviously, we think, counsel fulfilled their professional obligations. They would have, or should have, done exactly the same things if they had been fully paid, representing a client who had engaged them and paid them. No lawyer is under obligation to appeal a judgment if in his professional opinion no error has been committed by the trial court and no appeal properly lies. Indeed his obligation is the other way. Appeals are for the purpose of correcting errors; they are not for the purpose of affording a review of an entire trial and substituting the views of the appellate court for the decision of the trial court upon all questions which the trial court is called upon to decide in the course of the trial. It is settled beyond doubt that, while any alleged error may be posed for decision of the appellate court by a direct appeal, only Constitutional questions, questions of jurisdiction, or questions concerning actions outside statutory restrictions or otherwise subject to collateral attack remain open to collateral attack by means of a Section 2255 motion. * * * ”

and Busby v. Holman, 5 Cir. 1966, 356 F.2d 75, held:

“In considering this contention of the appellant we must bear in mind that the constitutional requirement of effective assistance of counsel does not require or permit the court upon a subsequent review to analyze counsel’s mental proc-cesses in order to determine whether every conceivable avenue of evidence has been totally explored and every possible theory of defense has been pursued. United States ex rel. Boucher v. Reincke, 2 Cir. 1965, 341 F.2d 977, 981. It is not counsel who is on trial. There can be held to be a lack of the effective assistance of counsel only when it appears that counsel’s assistance was so grossly inept as to shock the conscience of the court and make the proceedings a farce and a mockery of justice. Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, 669. See, also, Monroe v. Huff, 1944, 79 U.S.App.D.C. 246, 145 F.2d 249; Kinney v. United States, 10 Cir. 1949, 177 F.2d 895, and Rushing v. Wilkinson, 5 Cir. 1959, 272 F.2d 633, 638. Judge Minton well expressed the rule in United States ex rel. Feeley v. Ragen, 7 Cir. 1948, 166 F.2d 976, 980, as follows:

“ ‘ * * * Whenever the court in good faith appoints or accepts the appearance of a member of the bar in good standing to represent a defendant, the presumption is that such counsel is competent. Otherwise, he would not be in good standing at the bar and accepted by the court. The constitutional requirements have been met as to the necessity for counsel. If the action of counsel in the presence of the court in the conduct of the trial reduces the trial to a travesty on justice, such conduct might be considered on the proposition that such a trial was a denial of due process. The conduct of counsel in the trial of a case is that of only one of the officers of the court whose duty it is to see that the defendant receives a fair trial. He is only one of the actors in the drama. The best of counsel makes mistakes. His mistakes, although indicative of lack of skill or even incompetency, will not vitiate the trial unless on the whole the representation is of such low caliber as to amount to no representation and to reduce the trial to a farce. * * *

“ ‘Petitions challenging the competency of counsel, especially years after the conviction, must clearly allege such a factual situation which if established by competent evidence would show the representation of counsel was such as to reduce the trial to a farce or a sham. Otherwise, they should be dismissed.’ ”

After an appeal has been taken by an indigent defendant convicted of a felony, he is constitutionally entitled to the assistance of counsel to prosecute the pending appeal. Douglas v. People of State of California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Anders v. State of California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. An appeal is the continuation of the original action, and an attorney authorized by the defendant or the court to assist a defendant in the defense of a prosecution has authority to appeal, and no new order of the court is required to authorize him to appeal as counsel for the defendant.

The reason for the holdings that an indigent convicted defendant is entitled to the assistance of counsel in a pending appeal is to make more certain that his appeal is meaningful and not an empty procedural process; such defendant needs such service to insure a proper basic record on appeal and professional services to the appellate court for the benefit of the defendant in briefing the case. Waiver of oral argument might be permitted but not the filing of an appropriate brief. A proper record on appeal and a full and fair brief by an attorney as his advocate in a pending appeal are indispensable to insure a fully effective appeal. Douglas and Anders are decisions where an appeal had already been taken and both cases were then pending on an appeal and neither decision involved the denial of due process for the failure of counsel to initiate an appeal. To so hold would expand and enlarge on the court’s holding.

The defendant’s post-conviction motion for relief contained various grounds for relief, all of which were abandoned at the evidentiary hearing on the motion with the defendant present, except his request that his attorney take an appeal.

The position taken by the defendant’s counsel, the public defender, at the conclusion of the post-conviction hearing is clarified by the following colloquy:

“MR. CACCIATORE: Your Honor, the defendant alleged in his petition that he was not advised of his right to take an appeal; and, in fact, was refused. He stated on the witness stand that he was not advised to take an appeal and Mr. DuMond, the witness for the State, did not refute this allegation. He did not state that he advised this defendant of his right to take an appeal.

“THE COURT: You mean that it is the position of the Public Defender that in the representation of this defendant that the Public Defender failed to perform its constitutional duty to the defendant, that there was a constitutional duty of the Public Defender at that time to advise the defendant, even though he did not feel there were any grounds for an appeal, to advise him of his right to appeal, even though he did not feel it was warranted?

“MR. CACCIATORE: It is our contention that even though he did not feel that he had grounds on which to take an appeal, that he had the duty to advise the defendant of the constitutional right to appeal.

“THE COURT: That is the position of the Public Defender?

“MR. CACCIATORE: That is the position of the Public Defender. * * *

(( * * *

“MR. CACCIATORE: If the defendant was denied his right to appeal, he would be allowed to present to the trial court what normally would have been in the assignments of error to the Appeals Court.