DENNIS RICHARD SOBCZAK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE; THOMAS GROVER VAUGHN, APPELLANT, V. STATE OF FLORIDA, APPELLEE
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Two defendants convicted of armed robbery sought to suppress identification testimony from a lineup conducted without counsel present. The court held that because the defendants' right to counsel attached at their first appearance and a judge's order explicitly required counsel at the lineup, the identification evidence was inadmissible and the convictions must be vacated.
The court reversed and held that because appellants' right to counsel had attached at the time of the lineup under both federal constitutional law and Florida law, and because appellants were not afforded counsel, the lineup was illegal and the identification evidence was inadmissible and potentially tainted.
[1] A defendant's Sixth and Fourteenth Amendment right to counsel attaches at or after the initiation of adversary judicial criminal proceedings.
[2] A judicial order requiring a defendant to participate in a lineup constitutes an adversary judicial proceeding for Sixth and Fourteenth Amendment purposes.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A person's sixth and fourteenth amendment right to counsel under the United States Constitution attaches only at or after the time that adversary judicial criminal proceedings have been initiated against him by way of a formal charge, a preliminary hearing, an indictment, an information, or an arraignment.”
Establishes the federal constitutional framework for when the right to counsel attaches under Kirby v. Illinois.
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Join FLexlaw to unlock all legal intelligenceSobczak and Vaughn were arrested for armed robbery and appeared before a magistrate. A judge issued an order requiring both defendants to participate …
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BARKETT, Judge.
Defendants below contend that identification testimony resulting from a lineup conducted without defense counsel should have been suppressed. We agree and reverse.
The defendants were arrested for armed robbery and afforded a first appearance before a magistrate. Subsequent thereto an order was obtained from a second judge which provided that “both defendants shall participate in lineups arranged by police authorities with reasonable notice to the attorney for each of both defendants.”
Defendant Sobczak was not represented by counsel. Defendant Vaughn informed police that his attorney was a Mr. Jugo. Mr. Jugo was duly notified of the lineup.
On the day of the lineup, Jugo’s office called the police department and informed them that Jugo was home ill and that, furthermore, he had not been retained by Vaughn because Vaughn could not afford private counsel. Jugo’s office suggested that the police contact the public defender’s office. The public defender was never contacted on behalf of either appellant and the lineups were held without counsel being present.
A person’s sixth and fourteenth amendment right to counsel under the United States Constitution attaches only at or after the time that adversary judicial criminal proceedings have been initiated against him by way of a formal charge, a preliminary hearing, an indictment, an information, or an arraignment. Kirby v. Illinois, 406 U.S. 682, 689-690, 92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411, 417 (1972). In the instant case, the execution of an order by a judge ordering the defendants to participate in a lineup must surely be viewed as an adversary judicial proceeding for purposes of sixth and fourteenth amendment rights. However, we need not reach the federal issue in the present case.
The trial judge's order specifically established the right of these defendants to counsel at the time that he required their participation in the lineup.
Furthermore, even in the absence of such an order, the defendants were entitled to counsel under Florida law. Article I, section 16, of the Florida Constitution guarantees the right to assistance of counsel in all criminal prosecutions. Rule 3.130, Florida Rules of Criminal Procedure, provides that the right to assistance of counsel attaches as early as the defendant’s first appearance, which should occur within 24 hours of arrest. State v. Douse, 448 So. 2d 1184 (Fla. 4th DCA 1984). Rule 3.111(a), Florida Rules of Criminal Procedure, provides that a person is entitled to appointment of counsel when he is formally charged with an offense, or as soon as feasible after custodial restraint, or upon his first appearance before a committing magistrate, whichever occurs first.
Because appellants’ right to counsel had attached at the time of the lineup, and because appellants were not afforded counsel, the lineup was illegal and evidence thereof was inadmissible. Furthermore, it appears from this record that the in-court identification may have been tainted by the illegal lineup. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Hearns v. State, 262 So. 2d 907 (Fla. 4th DCA), cert. denied, 268 So. 2d 533 (Fla.1972).
Accordingly, the defendants’ convictions are vacated and this matter is remanded for a new trial in accordance herewith.
DOWNEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Traylor v. State, 596 So. 2d 957 (Fla. 1992)…. 2nd DCA 1987) (unspecified right to counsel had not attached where line-up was held prior to first appearance); Traylor v. State, 498 So. 2d 1297 (Fla. 1st DCA 1986) (federal right had attached where information had been issued); Sobczak v. State, 462 So. 2d 1172 (Fla. 4th DCA 1984) (state right attaches as early as first appearance); State v. Douse, 448 So. 2d 1184 (Fla. 4th DCA 1984) (state right attaches as early as first appearance). . Johnson had just received the letter of appointment the day before,…
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Peoples v. State, 576 So. 2d 783 (Fla. 5th DCA 1991)…rida, via the rule 3.130 first appearance or via the rule 3.133(a) non-adversarial hearing, the right to counsel does not attach. In so holding, we acknowledge conflict with Douse, supra, and, to the extent it relies on Douse, with Sobczak v. State, 462 So. 2d 1172 (Fla. 4th DCA 1984), rev. denied, 469 So. 2d 750 (Fla.1985). Since Peoples’ right to counsel was not violated under either the state constitution or the federal Constitution, the trial court correctly denied his motion to suppress. II. MOTION IN L…
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State v. Hoch, 500 So. 2d 597 (Fla. 3d DCA 1986)…t. at 1146, 89 L.Ed.2d at 427; see Forte v. State, 707 S.W. 2d 89, 92 (Tex.Crim.App.1986) (in Moran, the Supreme Court has “crystalized its position as to when the Sixth Amendment right to counsel attaches”). The fourth district in Sobczak v. State, 462 So. 2d 1172 (Fla. 4th DCA 1984), rev. denied, 469 So. 2d 750 (Fla.1985), had held that a lineup constituted adversary judicial proceedings. In light of Moran, and because the fourth district decided this issue on a constitutional basis, Sobczak is no longer goo…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Gilbert v. California, 388 U.S. 263 (U.S. 1967)
- Kirby v. Illinois, 406 U.S. 682 (U.S. 1972)
- State v. Douse, 448 So. 2d 1184 (Fla. 4th DCA 1984)
- Hearns v. State, 262 So. 2d 907 (Fla. 4th DCA 1972)
- Koedatich v. State, 268 So. 2d 533 (Fla. 1972)
- Latex Constr. Co. & Argonaut Ins. Co. v. McCORD, 268 So. 2d 533 (Fla. 1972)