JAMES DIAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Dias appealed the denial of his motion to vacate a guilty plea and sentence, claiming he lacked counsel at arraignment. The court affirmed the denial, holding that Dias failed to allege he was insolvent at the time of his plea, and that post-conviction relief requires allegations showing entitlement to relief under the newly established Gideon right to counsel.
The court affirmed the denial of the motion to vacate, holding that although the trial court's reasoning (that Dias waived his right to counsel) was erroneous under Gideon, Dias's motion was legally insufficient because it failed to allege that he was insolvent and unable to obtain counsel at the time he entered his plea. Under Gideon, the right to counsel extends only to those financially unable to employ counsel, and post-conviction relief requires allegations showing entitlement to relief.
“These facts are not sufficient to constitute a waiver. King v. State, Fla.App.1963, 157 So. 2d 440.”
The court rejected the trial court's reasoning that Dias waived his right to counsel merely by not requesting it.
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Join FLexlaw to unlock all legal intelligenceDias was charged with breaking and entering with intent to commit a felony and grand larceny. He appeared at arraignment without counsel and pleaded g…
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An information was filed against the appellant, James Dias, charging him with breaking and entering with intent to commit a felony and grand larceny. He appeared at the arraignment without benefit of counsel and pleaded guilty. On December 31, 1962, after being adjudged guilty, Dias was sentenced to a term of two years in the State Penitentiary.
On May 14, 1963, the appellant filed a motion1 to vacate the judgment and sentence on the ground that he had entered his plea of guilty without the benefit and advice of counsel. With the motion he filed an affidavit of insolvency, stating that he was without funds for the purpose of prosecuting the motion; that he had no property; and that he had not divested him*767self of any property for the purpose of benefitting from the oath of insolvency. The court entered an order declaring Dias insolvent. On May IS, 1963, the motion to vacate the judgment and sentence was denied, the order reciting that Dias had entered a voluntary plea of guilty without requesting that counsel be appointed on his behalf and that he had freely admitted that he was guilty of the offenses charged. From this the trial court concluded that Dias had waived his right to counsel. These facts are not sufficient to constitute a waiver. King v. State, Fla.App.1963, 157 So.2d 440.
Notwithstanding the fact that the trial court’s order was based on this erroneous reason, the order must nevertheless be affirmed for the reason that the motion to vacate does not allege that Dias was insolvent and unable to obtain counsel at the time he entered his plea of guilty. Savage v. State, Fla.App.1963, 156 So.2d 566. The record does not disclose any affidavit or order of insolvency prior to or at the time of the arraignment and plea. The affidavit of insolvency submitted with the motion to vacate is evidence of appellant’s insolvency at that time, and the order of insolvency establishes his insolvency at such time; but these do not have the retroactive effect of either alleging, showing or establishing insolvency at the time the plea was entered.
The right to counsel under the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), extends only to a person who is financially unable to employ counsel. In seeking post-conviction relief under Criminal Procedure Rule No. 1, the convicted person must allege facts which show that he is entitled to relief. The motion filed by Dias, collaterally attacking the judgment and sentence, was legally insufficient to state a prima facie case. The order denying relief is affirmed.
Affirmed.
SMITH, C. J., and SHANNON and WHITE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Crusoe v. State, 183 So. 2d 600 (Fla. 2d DCA 1966)…of Gideon. A movant for post-conviction relief must allege factual elements sufficient to constitute a basis for the collateral relief sought, otherwise the motion is deficient. State v. Weeks, Fla.1964, 166 So. 2d 892; Dias v. State, Fla.App.1963, 158 So. 2d 766. This is not to say that such motion should be scrutinized for technical niceties, quite the reverse;2 but at the same time, facts and not conclusions or [*603] suppositions must be set forth. Austin v. State, Fla.App.1964, 160 So. 2d 730; Hale v. S…
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Elester S. Roberts v. State, 169 So. 2d 43 (Fla. 2d DCA 1964)…al Procedure Rule No. 1, F.S. A. ch. 924 Appendix. The motion for post conviction relief did not allege any matters for which such relief could be granted. See and compare Stacey v. State, Fla.App. 1964, 165 So. 2d 222; Dias v. State, Fla.App. 1963, 158 So. 2d 766; Savage v. State, Fla.App.1963, 156 So. 2d 566; Auflick v. State, Fla.App.1963, 158 So. 2d 767; King v. State, Fla.App.1963, 157 So. 2d 440. Affirmed. SMITH, C. J., and SHANNON and WHITE, JJ., concur.…
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Adams v. State, 164 So. 2d 35 (Fla. 2d DCA 1964)…or relief pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. The order was predicated, inter alia, on the ground of insufficient allegations in the motion to vacate, and must be affirmed on the basis of Dias v. State, Fla. App.1963, 158 So. 2d 766. However, there being possible merit in defendant’s plea for relief, we affirm without prejudice to subsequent proceedings on proper motion pursuant to Criminal Procedure Rule No. 1. Affirmed. SMITH, C. J., and SHANNON and ANDREWS, JJ., concur.…
Previewing 3 of 16 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)
- King v. State, 157 So. 2d 440 (Fla. 2d DCA 1963)
- Savage v. State, 156 So. 2d 566 (Fla. 1st DCA 1963)
- Dias v. State, 155 So. 2d 662 (Fla. 2d DCA 1963)