
    Leroy McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. G-302.
    District Court of Appeal of Florida. First District.
    Jan. 6, 1966.
    Rehearing Denied Feb. 4, 1966.
    Leroy McCray, in pro. per.
    Earl Faircloth, Atty. Gen., and William D. Roth, Asst. Atty. Gen., for appellee.
   RAWLS, Chief Judge.

The appellant has tajeen this appeal from an order entered by the Circuit Court for Bradford County denying his motion for post-conviction relief in a proceeding pursuant to Florida Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.

Appellant frames the primary point on appeal as: “If a defense counsel is not appointed to defend the accused until the actual day of his trial and the cause then proceeds immediately to trial, does such appointment fulfill the requirements of due process of law, wherein each person charged with a crime is entitled to representation by counsel?”

The record in this cause shows that in 1950 the appellant was charged by information with the crime of breaking and entering with intent to commit grand larceny and the crime of assault with intent to murder, both offenses being felonies under Florida law. The court minutes of several days later recite that the said two cases were called and that the appellant, being present in open court, “stated that he was not represented by Counsel and that he had no funds with which to employ Counsel.” The minutes then state that the court “then appointed” a certain practicing attorney of the circuit “to represent him in the case.” The record further shows that at the same hearing the appellant “being present in open Court accompanied by Counsel” was duly arraigned and pleaded guilty to the said charges; and that the court then convicted him and sentenced him to 15 years confinement in the State Penitentiary on the first charge and 20 years on the second, the said terms to run consecutively.

Basic allegations that appellant sets forth in his motion to vacate and set aside the judgments of conviction and the sentences are: (1) That he was “incompetent to law and was indigent, and * * * was not appointed counsel until the actual day of his trial and the cause then proceeded immediately to trial.” (2) “Therefore, on the day of the defendant’s trial (at the conclusion of which he received 20 years in the State Prison) as he stands before the Court, * * * the Court at that moment appoints a lawyer to defend him (who not only knows nothing about the facts in the case or the position of the defendant but does not even have an opportunity to consult and talk with the defendant about his defense). * * *” Elaborating upon this argument, the appellant also asserts in his motion that his said court-appointed attorney had no opportunity to interrogate him “minutely and precisely” about his part in the charged offenses, nor an opportunity to search for witnesses who might assist in the defense.

Stripped to bare essentials, we are here concerned with the appellant’s conclusion that his counsel did not have adequate time to prepare for trial. It is elementary that the state and federal constitutional provisions require that counsel, court-appointed or privately employed, must be afforded a reasonable time to prepare for trial. However, this court is-not here confronted with a motion by counsel to allow him a reasonable time to' prepare for trial as was the case in Solomon and Brooks. The record being silent upon the subject, it must be presumed that counsel, in his judgment, thought he had adequate time in which to confer with his-client, for his client to advise him of his guilt, and to stand by the side of defend-' ant while he entered his plea of guilty.. Such a conclusion is buttressed by defendant’s silence at the time of his sentencing,, and his ensuing silence for fifteen years,, for at no time has he sought to withdraw-his plea of guilty. This record does show that defendant stated in his motion for relief:

“This case took place in 1950 and at that time under the laws of the state- and under the laws of the Supreme-Court of the United States in the-case of Betts v. Brady, 316 U.S. 455 [62 S.Ct.] 1252 [86 L.Ed. 1595], it was not a requirement that the accused have counsel appointed for him. Therefore the defendant cannot say that his appointed lawyer failed to perform his duty in a proper and correct manner under the circumstances, and the statements herein are not in any sense to be considered or construed as an indictment of the actions of defendant’s court appointed counsel in this cause, in light of the legal precedents then existing. The accused, in all candor, cannot complain. Times have changed, however, and the precedents have changed.
* * * * * *
“As stated before defendant did not here impugn the motives of this court apointed lawyer in his defense of this cause but this court must consider the actions taken place in 1950 under the strong light now being cast upon these actions as the law exists today.”

It is apparent from the foregoing that •defendant does not predicate this attack upon allegations of incompetent counsel.

Individuals accused of crimes possess extensive constitutional rights which must be safeguarded. Such rights include a freedom of choice on the part of defendant to plead guilty or not guilty. Likewise, organized society in order to exist possesses certain rights, among these being the right to a speedy trial of those accused of transgressing the laws of society. It must be assumed from the record that the state had present and waiting its witnesses to testify against the accused and the necessary veniremen to sit as his peers. We cannot at this date, more than 15 years later, assume that these witnesses are available. It appears that this defendant seejcs to escape an adjudication of guilt, not because of something the state did, or failed to do, but because he pleaded guilty with counsel by his side.

Watson v. State is not applicable. There, as in Brooks v. State and Solomon v. State, the defendant was put to trial shortly after procurement of counsel upon a plea of not guilty. Trial upon a plea of not guilty necessarily requires time for counsel to confer with witnesses, issue subpoenas, investigate veniremen, etc., all of which are unnecessary in the case of a guilty plea. This defendant was not accused of committing sophisticated offenses requiring extensive research to determine his guilt. He was charged with breaking and entering a specific building (store) on a specific date with intent to commit a felony (larceny of goods of the value of more than fifty dollars) and with assaulting a named individual on a specific date with a certain .deadly weapon (a pistol) with a premeditated design to kill and murder the named individual. Obviously, it did not require any great length of time for defendant to tell his lawyer that he broke into a named store on a certain date with intent to steal goods of a value of more than fifty dollars and that he shot a named individual on a certain date with intent to kill him.

The ethics controlling the obligation and relationship between an attorney and his client are the same today as they were in 1950. Neither the Gideon v. Wainwright nor any other recent United States or State court decision pertaining to the right of an accused to be represented by counsel, whether chosen by accused or appointed by the court, have altered this relationship. It can only be presumed that if the attorney appointed to represent the accused in 1950 felt that additional time was needed for him to properly advise the accused, he would have requested a continuance. Since the record does not reflect such a request, defendant’s counsel apparently felt that he had adequate time for conferring with his client and preparing for trial. It does not take any particular length of time for a person to relate an incident of guilt. Bare facts are sufficient.

The Second District Court of Appeal was confronted with the same basic question in State v. Daniels. There the trial judge in a rule one proceeding found from the record that “ * * * competent counsel was appointed, but it is apparent that in the seventy minutes Court was in session on August 21, 1945, even such competent counsel could not obtain for nor accord to the indigent defendant due process as guaranteed by the duly recognized safeguards.” In setting aside the trial judge’s order granting a new trial, the appellate court held inter alia: “To abstractly hold that the length of time between which counsel is appointed and client pleads guilty is too short- to allow counsel to become acquainted with the factual and legal issues of the case, smothers the realities and practicalities of this case.”

Federal decisions upon this subject are enlightening. In Goforth v. United States it was held that failure to appoint counsel for accused until a few minutes before commencement of trial of accused did not result in denial of his constitutional rights to effective assistance of counsel where appointed counsel took an active and effective part in the trial, exercised the right of cross examination and clearly presented accused’s defense since the record did not show where Goforth suffered any prejudice. In Brinegar v. United States the Sixth Circuit Court of Appeals held that the competence of counsel cannot be determined solely on the basis of the amount of time he spent in interviewing the appellant and that the trial court did not abuse its discretion in refusing to allow the accused to dismiss his appointed counsel and substitute privately-employed counsel after the trial had been in progress for half a day. Likewise, this record fails to show any allegation going toward the incompetence of counsel; it simply is McCray’s position that he is entitled to a new trial because his lawyer had no opportunity to interrogate him “minutely and precisely * *

In United States v. Wight counsel was appointed at the first call of the calendar. In his motion to vacate sentence, defendant alleged that he conferred with his counsel only fifteen minutes and then pleaded guilty; that such shortness of time deprived him of the effective assistance of counsel. The Second Circuit Court of Appeals held that the fact that a defendant conferred with court assigned counsel for about IS minutes, between assignment and the time the case was reached, did not establish denial of the constitutional guarantee of conscientious competent counsel. In so holding, the court stated:

“Moreover, time consumed in oral discussion and • legal research is not the crucial test of the effectiveness of the assistance of counsel. The proof of the efficiency of such assistance lies in the character of the resultant proceedings, and unless the purported representation by counsel was such as to make the trial a farce and a mockery of justice, mere allegations of incompetency or inefficiency of counsel will not ordinarily suffice as grounds for the issuance of a writ of habeas corpus or the granting of a petition pursuant to 28 U.S.C 2255.”

The Second Circuit reaffirmed the foregoing principle in United States v. Tribote wherein it stated :

“ * * * the allegation that the consultation between appellant and his-assigned counsel was ‘short’ does not support a conclusion that the proceedings which followed were, as a result, ‘a farce and a mockery of justice.’ ”

The judicial decisions of the last few years have discovered new concepts of due process as same relates to indigents accused of committing criminal offenses, such as (1) right to court-appointed counsel at all critical stages of prosecution, (2) a plea of guilty may not be construed as a waiver of counsel, and (3) waiver of counsel must be intelligently made and this must be apparent from an examination of the record. The foregoing grounds have been explored in detail by those incarcerated. This defendant candidly states in his brief “ * * * an increasing trend in right to counsel causes is for prisoners to attack their sentencing (sic) on the grounds of inadequate representation.” To sustain this collateral attack made on a judgment of conviction entered upon a plea of guilty would constitute an indictment of the trial judges of this state and of every member of the bar.

We find no merit in appellant’s remaining point on appeal.

We find that the question considered is one of great public interest as contemplated by Section 4(2), Article V, Constitution of the State of Florida, F.S.A., and, therefore, we will certify this case to the Supreme Court pursuant to said constitutional provision.

Affirmed.

JOHNSON, J., concurs.

CARROLL, DONALD K, J., dissents.

CARROLL, DONALD K., Judge

(dissenting).

I cannot concur with the majority opinion because I believe not only that it conflicts with established principles but also that it violates what I conceive to be fundamental precepts of right and justice, and appears to me to have the effect of substantially reducing the value and meaning of the sacred constitutional right of an indigent to the assistance of counsel at his trial.

The appellant has taken this appeal from an order entered by the Circuit Court for Bradford County, denying his motion for post-conviction relief, filed pursuant to Florida Criminal Procedure Rule No. 1, claiming the deprivation of his constitutional right to the benefit of counsel at his trial.

The ultimate question before us in this appeal is whether the said constitutional right includes a reasonable time for court-appointed counsel to prepare for the trial.

In his motion, filed in 1965, to vacate and set aside the judgments of conviction and the sentences, filed pursuant to the provisions of Criminal Procedure Rule No. 1, the appellant alleges the following concerning the trial court’s appointment of counsel to represent him: that, when he was arraigned, tried, convicted, and sentenced, he was “incompetent to law and was indigent, and * * * was not appointed counsel until the actual day of his trial and the cause then proceeded immediately to trial.”

The appellant also vividly alleges and' contends in his said motion that the constitutional right to counsel is not accorded a defendant who stands “at the bar of justice ready for trial. And at that precise moment, the court reaches out into its audience and selects an attorney (in these cases the Public Defender) to step' forward and stand beside the defendant.”

In a later paragraph of his said motion the appellant presents his position in this vein: “Therefore, on the day of the defendant’s trial (at the conclusion of which he received 20 years in the State Prison) as he stands before the Court, * * * the Court at that moment appoints a lawyer to defend him (who not only knows nothing about the facts in the case or the position of the defendant but does not even-have an opportunity to consult and talk with the defendant about his defense). * * * ” Elaborating upon this argument, the appellant also asserts in his motion that his said court-appointed attorney had no opportunity to interrogate him “minutely and precisely” about his part in the charged offenses, nor an opportunity to search for witnesses who might assist in the defense.

The above allegations in the appellant’s motion concerning the court’s appointment of the counsel at the trial, in my opinion, are uncontradicted by the recitals in the record, if not wholly consistent therewith. Nevertheless, the Circuit Court in the order appealed from herein found that the appellant “had counsel at the time of the entry of his plea of guilty” as to both ■charges, and denied the appellant’s said motion.

The landmark case in this area of the law is, of course, the decision of the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In that case the Supreme Court held that the guarantee of the right to the benefit of counsel secured by the 6th Amendment to the United States Constitution is made obligatory upon the states by virtue of the 14th Amendment thereto, at least in the trial of felony cases in the state courts. This “Gideon doctrine” has been recognized and applied by myriads of subsequent federal and state decisions.

The appellant’s concept of the nature of the constitutional right to counsel as embodying a reasonable time to prepare for trial finds support in many decisions of the courts of Florida. For instance, the Supreme Court of Florida in Christie v. State, 94 Fla. 469, 114 So. 450 (1927), said:

“Our country is committed to the doctrine that no matter what the crime one may be charged with he is entitled to a fair and impartial trial by a jury of his peers. Such a trial contemplates counsel to look after his defense, compulsory attendance of witnesses, if need be, and a reasonable time in the light of all the prevailing circumstances to investigate, properly prepare, and present his defense. When less than this is given, the spirit and purpose of the law is defeated. Moore v. State, 59 Fla. 23, 52 So. 971; State v. Pool, 50 La.Ann. 449, 23 So. 503; Browne v. State, 88 Fla. 457, 102 So. 546; Anderson v. State, 92 Fla. 477, 110 So. 250.”

The recent decision of the District Court of Appeal, Third District of Florida, in Watson v. State, 169 So.2d 887 (1964), directly supports the position of the appellant in the present appeal. In that case Watson appealed from an order denying his motion for post-conviction relief filed pursuant to Criminal Procedure Rule No. 1. When the case came on for trial, Watson was without counsel, whereupon, in the words of the District Court of Appeal, the trial court “called on one of the public defenders who was present to represent Watson, and the trial proceeded forthwith.” With regard to such appointment of counsel for Watson, the appellate court held:

“The right of a criminal defendant to be represented by counsel includes being afforded a reasonable time before trial within which to obtain a lawyer or to have one appointed a reasonable time before trial, in order that the attorney may have an opportunity to confer with the accused and to prepare for trial. The time so required may vary, and will depend on the nature and complexities of the case. Such a requirement is not met when the lawyer is appointed as the trial commences. See House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Christie v. State, 94 Fla. 469, 114 So. 450; French v. State, Fla.App.1964, 161 So.2d 879; 14 Am.Jur., Criminal Law § 172. Here there was no waiver of counsel, and under the circumstances the defendant was subjected to trial without representation as called for under the Gideon case.”

The Third District Court of Appeal then reversed the order appealed from and remanded the cause for further proceedings as provided for under Criminal Procedure Rule No. 1.

An analogous situation was also involved in a case before this court in Brooks v. State, 176 So.2d 116 (1965), which was an appeal from an order denying a motion for new trial, rather than an order denying a motion for post-conviction relief under the said Rule No. 1, as in the present case. One of the assignments of errors was that the trial court erred in denying the motion for a continuance made by the defense counsel so as to enable the appellant, Brooks, sufficient time in which to summons the witnesses whom the public defender, who had previously represented Brooks, had neglected to summons, which denial caused Brooks to be inadequately represented at the trial. At his arraignment on May 22, 1964, Brooks was adjudged to be insolvent, and the trial court appointed the public defender to represent him as well as a co-defendant. On June 4, 1964, the public defender advised the court that Brooks was dissatisfied with his representation, and requested the court to appoint counsel to represent Brooks, stating that he would continue to represent the co-defendant. The court granted this request and appointed a member of the bar, James Tomlinson, to assist the public defender at the trial by representing Brooks. On the next day, June S, at 9 :30 A.M. Brooks was brought to trial. Prior to the selection of the veniremen Tomlinson made the motion for continuance mentioned above. In our opinion we then stated the issue and principles involved as follows:

“Thus we are squarely presented with an uncontroverted factual situation which discloses that the following events transpired in less than 24 hours prior to trial: (1) Defendant’s attorney was relieved of his responsibility by the court. (2) New counsel was appointed by the court to represent defendant. (3) Defendant’s new counsel moved for a continuance on the ground that he had not been afforded an adequate opportunity to prepare a defense for defendant. The organic right to he represented by counsel necessarily carried with it the right to have a reasonable time in which to prepare for trial. Here, the trial court determined on the day prior to trial that it was in the interest of justice to relieve defendant’s counsel of his duties and concurrently held that defendant was entitled to the services of other counsel, which the court appointed. Once having determined that defendant was entitled to Tomlinson’s services, the court, in order to comply with the provisions of Section 11, Declaration of Rights, Florida Constitution, F.S.A., should have granted counsel a reasonable time to prepare for trial.” (Emphasis not supplied.)

We then concluded that the trial court’s denial of the said motion for continuance was “an abuse of discretion and resulted in a deprivation of a fundamental right on the part of defendant.” Consequently we reversed the order appealed from and remanded the cause with directions to grant a new trial.

In our opinion in the Brooks case, supra, we quoted with express approval the following statement from our decision in French v. State, 161 So.2d 879 (1964) concerning the fundamental rule applicable in cases of the kind before us:

“The right to the appointment of counsel under the circumstances herein considered is not a sham or hollow right amounting to a superficial gesture in order to lend color of compliance with constitutional guarantees. The right is a real and substantial one to be accorded in such manner as to fully meet the purpose, spirit and intent of those provisions of organic law which guarantee due process.”

If the appellant in Brooks v. State, supra, was deprived of his constitutional right to the benefit of counsel, when his newly-appointed counsel had several hours in which he could have prepared for or planned the defense, a fortiori the appellant in the case at bar was deprived of his constitutional right to counsel, when, according to the uncontradicted allegations of the appellant’s said motion to vacate, his counsel was appointed only moments before being called upon to assist in the defense.

The latest Florida decision recognizing the principle that the constitutional right to counsel includes the right to a reasonable time to investigate and prepare for trial, is our decision in Barton v. State, Fla.App., 182 So.2d 655, opinion filed simultaneously with the filing of the opinions in the instant case. In that case, like the present one, the appellant appealed from an order denying his motion to vacate filed pursuant to the said Rule No. 1. He contended that immediately after an attorney was appointed by the court to represent him, the attorney pleaded the appellant guilty of all the charges filed against him without first having made an independent investigation of such charges, and without having conferred with the appellant with regard to the facts of any of the charges. With regard to the foregoing contention, the majority of our court held:

“If, as alleged and contended by appellant, his attorney pleaded him guilty to all thirty-four counts of the three in-formations filed against him without first conferring with appellant and without investigating the facts concerning each of such charges, then we would be forced to the conclusion that the appointment of counsel to represent appellant was a mere gesture and fell far short of affording appellant legal representation as guaranteed by the due process clause of the Constitution. If, on the other hand, the attorney appointed by the court did, following his appointment, in fact read, study and consider the several charges made against appellant in the thirty-four counts of the informations, and also made an adequate investigation of each of such charges before pleading appellant guilty on the same day upon which the informations were filed and appellant was arraigned, then the due process guarantee of the Constitution may be considered to have been met. This is the issue on which the trial court should have taken evidence and which must be resolved before the conclusion can be reached that appellant is not entitled to the relief prayed for by his motion to vacate.”

While I recognize that the above-discussed five Florida cases involved facts different in some particulars from those in the case at bar, one common fundamental principle, it seems to me, runs clearly through all six cases — the just principle that the right to the assistance of counsel includes the right to a reasonable time within which to prepare for trial.

In some respects, I think, the case at bar calls more strongly than the other five cases for the application of the said principle than the above five cases do, for if the allegations of the motion before us are true (and there is nothing in the record to contradict them), the appellant’s attorney, suddenly called out of the audience to represent the appellant at the trial then commencing, not only did not have a reasonable time to prepare for trial but in a real sense had no time at all. Even if the appellant, under these strange and exciting circumstances, had hurriedly told his just-appointed attorney that he was guilty, the attorney could hardly act upon that assurance, for every lawyer knows of the unreliability of the average layman’s concept of his guilt or innocence of a criminal charge, for a layman, untrained in the law, often is entitled to legal defenses of which he has no knowledge. In any event, I do not see how we can fairly say as a matter of law that the appellant here was accorded his constitutional right to the assistance of counsel and was not entitled, under the provisions of Rule No. 1, to a hearing at which he would have an opportunity to present evidence in support of the allegations of his motion to vacate.

Even if the foregoing five Florida decisions were not binding upon us here, I would feel that the dictates of logic and fair play would require a reversal of the order appealed from herein. Every lawyer knows that it takes a substantial amount of time to prepare adequately to defend an accused at a trial, even in an apparently simple case. He must confer at some length with the accused, interview all possible witnesses, prepare and file appropriate motions, study the law involved, obtain the timely issuance of witness subpoenas, plan the strategy for the defense at the trial, and decide upon the plea which the accused should make, in the light of the circumstances divulged in his investigation. Where the lawyer is suddenly called upon by the judge, as here, to stand beside the accused at the moment of his arraignment and represent the accused at the trial, which follows immediately, the lawyer, in my view, cannot be said as a matter of law to be in a position to render the adequate assistance in the defense to which the accused is constitutionally entitled. In such a situation, even if the accused hurriedly whispers to his just-appointed attorney that he is guilty of the crime charged, every lawyer knows that the view of a layman on trial as to his guilt or innocence is notoriously unreliable, for oftentimes an accused is entitled to a legal defense of which he has no knowledge or understanding. In fact, the lawyer in that position often would scarcely possess sufficient information from which to frame the grounds for a successful motion for a continuance. In any event, I do not see how we can say as a matter of law on the record before us that the appellant was accorded his constitutional right to the assistance of counsel.

In other words, my view is that expressed by the Supreme Court of Florida in its above-quoted opinion in Christie v. State, that, when less than a reasonable time is given to investigate, properly prepare, and present the defense, “the spirit and purpose of the law is defeated.” My view was also precisely set forth in the above quotation from our opinion in French v. State that the right to the appointment of counsel “is not a sham or hollow right amounting to a superficial gesture in order to lend color of compliance with constitutional guaranties.”

The province of this court in the present appeal is not to adjudge whether or not the appellant was in fact accorded his right to counsel at his trial, but only to determine whether the trial court erred in its order summarily denying the appellant’s motion to vacate without setting a hearing at which the appellant would be afforded an opportunity to present evidence in support of the allegations of his motion.

In deciding this latter question, we must follow the guidelines found in Criminal Procedure Rule No. 1, adopted by the Supreme Court of Florida, pursuant to which rule the appellant’s motion to vacate was filed. The key provision of the said rule provides as follows:

“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.”

Applying this key provision literally, can we say that the appellant’s motion to vacate conclusively shows that he is entitled to no relief? I think it would more nearly be accurate to say that his motion conclusively shows that he is entitled to relief, especially where, as here, the record and file of this case are compatible with the allegations in the appellant’s said motion. In any event, by the terms of the said key provision of the rule, unless we find that “the motion and the files and records of the case conclusively show” that the appellant is entitled to no relief, we must hold that the trial court erred in denying his motion without giving the appellant his “day in court” on his allegations and without setting a hearing at which the appellant would be given a full opportunity to present evidence to prove his said allegations.

Accordingly, I would reverse the order appealed from and remand the cause with directions to set such a hearing and to proceed further in accordance with Rule No. 1. I, therefore, dissent. I do agree with the majority, however, that the decision in this cause passes on a question of great public interest and should, therefore, be certified to the Supreme Court of Florida pursuant to Section 4(2), Article V, of the Florida Constitution. 
      
      . Solomon v. State, 138 So.2d 79 (Fla.App.1st, 1962); Brooks v. State, 176 So.2d 116 (Fla.App.1st, 1965).
     
      
      . Watson v. State, 169 So.2d 887 (Fla.App. 3d, 1964).
     
      
      . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
     
      
      . See Simpson v. State, Fla.App.1st, 181 So.2d 185, December 14, 1965.
     
      
      . State v. Daniels, Fla.App.2d, 178 So.2d 44, August 27, 1965.
     
      
      . Goforth v. United States, 314 F.2d 868 (10th Cir., 1963).
     
      
      . Brinegar v. United States, 290 F.2d 656 (6th Cir., 1961).
     
      
      . United States v. Wight, 176 F.2d 376 (2nd Cir., 1949).
     
      
      . United States v. Tribote, 297 F.2d 598 (2nd Cir., 1961).
     