SAMMY BRANCH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1964-03-17
No. 63-577
Before BARKDULL, C. J., and HORTON and TILLMAN PEARSON, JJ.
162 So. 2d 528 Florida District Court of Appeal, Third District (1964) Positive Treatment
Cited by 6 cases

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Synopsis

The appellate court reversed the denial of a motion for a new trial, finding that the trial court's findings were not supported by the record and that the record was silent on whether the appellant requested or was offered counsel, which is crucial for determining a waiver of constitutional rights.

Holding

Yes, the silence of the record on the issue of counsel does not create a presumption of waiver, and the trial court's findings were not supported by the record, necessitating a reversal.

Key Quotes

“The record in this cause is silent as to whether or not appellant requested counsel or whether or not he was offered counsel. Silence alone does not create a presumption that he waived his constitutional right.”

Establishes the core factual issue and legal principle regarding the presumption of waiver of counsel.

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Facts & Procedural History

The appellant's motion for a new trial was treated by the trial court as a motion to vacate a judgment and conviction under Criminal Procedure Rule No…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics
Criminal Procedure Rule No. 1 Findings Of Fact And Conclusions Of Law Conclusions Of Law Findings Of Fact

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Opinion of the Court
HORTON, Judge.

HORTON, Judge.

This appeal is from the denial of appellant’s motion for new trial considered by the trial court as a motion to vacate or set aside a judgment and conviction pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. The appellate courts of this state have already passed on questions similar to those raised by this appeal. Therefore, upon the authority of King v. State, Fla.App. 1963, 157 So.2d 440, and Barker v. State, Fla.App.1964, 159 So.2d *529676, and cases cited therein, this cause must be reversed.

The record in this cause is silent as to whether or not appellant requested counsel or whether or not he was offered counsel. Silence alone does not create a presumption that he waived his constitutional right. Under Rule 1, unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court should cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing, determine the issues and make findings of fact and conclusions of law. It is true the trial court conducted a hearing and made certain findings of fact and conclusions of law, but they are not supported by the record before us.

Accordingly, the matter should be set down and the provisions of the rule complied with in respect to a subsequent hearing.

Reversed with directions.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Quillian v. State, 163 So. 2d 1 (Fla. 3d DCA 1964)
    …d the appellant. The allegation of absence of counsel for the defendant is not conclusively refuted by the files and record of the case, and for that reason the matter should he heard on notice in the trial court. See Branch v. State, Fla.App.1964, 162 So. 2d 528; Cami [*2] nata v. State, Fla.App.1964, 159 So. 2d 921, and cases cited therein. Accordingly the order appealed from is reversed and the cause remanded for further proceedings as provided for in Rule 1 and as indicated above. Reversed and remanded…
  • Emory George Tynes v. State, 163 So. 2d 19 (Fla. 3d DCA 1964)
    …r is entitled to no relief, the trial court should cause notice to be served on the prosecuting’ attorney of the court, grant a prompt hearing, determine the issues and make findings of fact and conclusions of law. See Branch v. State, Fla.App.1964, 162 So. 2d 528 and Caminata v. State, Fla. App.1964, 159 So. 2d 921, and cases cited therein. Accordingly, the matter should be set down and the provisions of the rule complied with in respect to a subsequent hearing. Reversed with directions.…
  • Summerlin v. State, 186 So. 2d 77 (Fla. 1st DCA 1966)
    …right. If the record is silent as to whether the accused requested counsel or was offered counsel, this silence, standing alone, is not sufficient to create a presumption that the accused waived his fundamental constitutional right. Branch v. State, 162 So. 2d 528 (Fla.App.3d, 1964). This court must, therefore reverse and remand the cause for further proceedings to determine whether this appellant was afforded the constitutional safeguards to which he was entitled. WIGGINTON, Acting C. J., and STUR-GIS, J.,…

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