JAMES DIAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Dias, an indigent defendant convicted of breaking and entering prior to Gideon v. Wainwright, filed a motion to vacate his conviction on the ground he lacked counsel at trial. When the trial court denied his motion and refused to appoint appellate counsel, Dias appealed and moved for counsel before the appellate court. The Second District Court of Appeal granted his motion, holding that denying counsel on appellate review of collateral constitutional challenges violates due process.
An indigent defendant is constitutionally entitled to appointment of counsel for appellate review of a collateral proceeding assailing his conviction on constitutional grounds. The court granted Dias's motion and temporarily relinquished jurisdiction to the trial court to appoint public defender or other appropriate counsel for the appeal.
“since it has been decided that a failure to provide counsel for an indigent on direct review of his conviction is a violation of his constitutional rights, it was reasonable to conclude that it would be no less a violation of those rights to deny him counsel on appellate review of collateral proceedings assaulting his conviction on constitutional grounds”
The court's core reasoning that extends the right to counsel beyond direct appeals to collateral constitutional challenges
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Join FLexlaw to unlock all legal intelligenceJames Dias was convicted of breaking and entering with intent to commit grand larceny in Polk County and sentenced to two years. His conviction occurr…
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Pursuant to Criminal Procedure Rule 1,. 31 F.S.A., James Dias filed motion to-vacate the judgment of conviction and’ sentence of two years which had been entered against him by the Criminal Court of Record of Polk County, Florida, prior to publication of the Gideon v. Wainwright case, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799. The offense of which he was. adjudged guilty was breaking and entering with intent to commit a felony, that of grand larceny; and the basis for his-motion to vacate was that his constitutional’ rights had been violated in that he had not been represented by counsel at the trial. The trial court entered an order denying the motion to vacate and, thereafter, one denying the motion of appellant for rehearing. Dias then filed an affidavit that he was insolvent and was so declared by the court. He ultimately filed an appeal: from the order denying the motion to vacate and moved that the trial court appoint an attorney to represent him on the appeal. This the trial court declined to. do.
The matter now before this court is a motion filed here by Dias requesting that appeal counsel be provided. Thus, this opinion is restricted to that subject, andi *663we are not presently concerned with the merits of the appeal.
Through the case of Donald v. State of Florida, Fla.App.1963, 154 So.2d 357, this court ruled that the defendant, Donald, an indigent, was entitled to appointment of counsel for his appeal, pursuant to his request to this court. There, a direct appeal had been entered by the defendant from the judgments and sentences which had been imposed upon him and not, as here, from an order of the court denying motion to vacate under Criminal Procedure Rule 1.
Under date of July 16, 1963, our sister ■court, the Third District Court of Appeal, filed an opinion in the case of Weeks v. State of Florida, 156 So.2d 36, wherein it granted a motion of the defendant-appellant Weeks similar to the one here considered. The appellate court, in granting the motion, temporarily relinquished jurisdiction to the criminal court of record for the purpose of designating the Public Defender of Dade County or other appropriate counsel to represent appellant on his appeal. The state moved to vacate this order, grounded upon the collateral nature of the review sought by Weeks as distinguished from a direct appeal from judgment of conviction and sentence.
After making reference to recent decisions of the Supreme Court of the United States, citing specifically the cases of Gideon v. Wainwright, supra; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; and Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899, the third district court, then, expressed the view that since it has been decided that a failure to provide counsel for an indigent on direct review of his conviction is a violation of his constitutional rights, it was reasonable to conclude that it would be no less a violation of those rights to deny him counsel on appellate review of ■collateral proceedings assaulting his conviction on constitutional grounds. Thereupon, the court denied the state’s motion to vacate.
Being in accord with the view enunciated by the third district court, we grant the motion lodged here by appellant Dias and relinquish jurisdiction temporarily to the Criminal Court of Record of Polk County for the purpose of appointment of public defender counsel under applicable act or other appropriate counsel to represent the appellant on his appeal.
It is so ordered.
KANNER, Acting C. J., and ALLEN and SHANNON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Weeks, 166 So. 2d 892 (Fla. 1964)…assistance of counsel in obtaining a review of an adverse order entered under Rule 1, supra. They have reached this conclusion with some admitted reluctance. Weeks v. State, supra; Mullins v. State, Fla.App., 157 So. 2d 701; Dias v. State, Fla.App., 155 So. 2d 662; King v. State, Fla.App., 157 So. 2d 440; Keur v. State, Fla.App., 160 So. 2d 546. Similarly, [*895] it has been held that an indigent is entitled to the assistance of counsel as a matter of right on a Rule 1 motion in the trial courts. Turner v. St…
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Webster v. State, 156 So. 2d 890 (Fla. 1st DCA 1963)…on the motion to vacate, and whether a similar duty devolves on this court with respect to the appeal proceedings. We are not unmindful of the decisions of our sister courts in Weeks v. [*896] State, 156 So. 2d 36 (Fla.App.1963), and Dias v. State, 155 So. 2d 662 (Fla.App.1963), holding' that an insolvent appellant is entitled to be furnished counsel on an appeal from an order denying his motion to vacate under Criminal Procedure Rule No. 1, and it is the policy of this court when so requested to take steps…
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Keur v. State, 160 So. 2d 546 (Fla. 2d DCA 1963)…(9), creates a lien upon all of the property of any person who receives assistance from any public defender. These statutory safeguards should protect the public treasuries against abuse. Consistent with our decision in Dias v. State, Fla.App.1963, 155 So. 2d 662, wherein we held that an insolvent defendant-appellant who had been denied relief under Criminal Procedure Rule No. 1 was entitled to court-appointed counsel to represent him on appeal, we now hold that such a prisoner is entitled to court-appointed…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963)
- Douglas v. California, 372 U.S. 353 (U.S. 1963)
- Draper v. Washington, 372 U.S. 487 (U.S. 1963)
- Donald v. State, 154 So. 2d 357 (Fla. 2d DCA 1963)
- Weeks v. State, 156 So. 2d 36 (Fla. 3d DCA 1963)