Belton v. State (217 So. 2d 97, 1968)

THORNAL, Justice.

We have for review a decision of a district court of appeal which passed upon a question certified to be of great public interest. Fla.Const. art. V, § 4, F.S.A.; Belton v. State, 211 So.2d 238, 239 (3d Dist.Ct.App.Fla.1968).

We must decide whether error occurs when a trial judge fails to appoint separate counsel for jointly tried indigent co-defendants in the absence of a demand therefor and without a showing of prejudice or conflict of interests.

Petitioner Belton and two co-defendants were jointly tried and convicted on a charge of robbery. Petitioner and one of the others were adjudged insolvent. All three were represented by the same public defender. There was no demand for separate counsel and no objection to joint representation at the trial. There was no showing of a conflict of interest among the defendants and no actual prejudice has been made to appear. On appeal to the District Court of Appeal, Third District, Belton urged for the first time that a fundamental error occurred when he and a co-defendant were not provided separate counsel at the trial. The District Court did not agree. The conviction was affirmed. This certiorari proceeding followed. Our jurisdiction stems from the certificate of great public interest.

As in the District Court, Belton claims here that the problem must be resolved in his favor on the authority of Baker v. State, 202 So.2d 563 (Fla.1967). As did the District Court, we find the two cases to be clearly distinguishable. Baker did not involve the necessity of searching out a so-called fundamental error. There a demand for independent counsel was made at the trial. It was refused by the trial judge. The alleged error was preserved and advanced on appeal. We held that it was error to refuse the request for separate counsel. Baker relied on a number of out-of-state cases which stand for the rule that co-defendants have the right to separate, independent counsel when (1), there is an objection or request made during the trial; (2), there is a conflict of interests between the co-defendants; or (3), the record reveals that some prejudice results from service by joint counsel. We commented that the “interests and defenses of most co-defendants are conflicting” and “usually” the strategy that will benefit one will react to the detriment of the other. We then stated that “it is this conflict and inconsistency of position which makes it impossible for the same counsel to effectively represent two or more co-defendants simultaneously.” Despite the insertion of the obiter regarding the “usual” presence