JIMMY JACK HOLMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the lower court erred in summarily denying the motion for relief because the record's silence regarding the right to counsel, coupled with the motion's allegations, presented a prima facie case for relief.
Appellant, a minor, pleaded guilty to a charge without counsel. His motion for relief alleged he was indigent and unrepresented. The lower court denie…
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This appeal arises upon denial of appellant’s motion for relief under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. The motion alleged that appellant, indigent and unable to retain counsel, was arraigned, pleaded guilty, was convicted and subsequently sentenced without the advice or assistance of counsel. The lower court, after examining the “files and records” in the cause, found that appellant had not requested counsel, that appellant had not apprised the court of his indigency and that despite the allegations of the motion it was not affirmatively shown that appellant had been indigent. The court concluded that appellant had not been denied the assistance of counsel and denied the motion.
The record of arraignment reveals that appellant, a minor at the time, appeared with his father and pleaded guilty. It is entirely silent as to whether appellant and/or his father were apprised of the right to counsel or if the court made any inquiry as to their desire for counsel. The record’s silence coupled with the affirmative allegations in the motion present a prima facie case for relief.1 None of the aforementioned findings of the lower court *434■suffice to preclude relief. Absent a finding -that appellant or his father was aware of .an indigent’s right to counsel, their failure -to request counsel or to indicate indigency -does not constitute a waiver of the right to «.counsel. Beadles v. State, Fla.App.1964, 162 So.2d 4.
Since the files and records do not conclusively refute the prima facie case for relief heretofore determined to exist, the order summarily denying the motion is reversed and the cause remanded for further proceedings in accordance with Criminal Procedure Rule No. 1 and our opinion in King v. State, Fla.App.1963, 157 So.2d 440.
Reversed and remanded.
SMITH, C. J., and ALLEN and WHITE, JJ., concur.
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Citator
Cited By
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Mason v. State, 176 So. 2d 76 (Fla. 1965)…s own. King v. State, Fla.App., 157 So. 2d 440; Beadles v. State, Fla.App., 162 So. 2d 4; Sams v. [*80] State, Fla.App., 163 So. 2d 10; Stewart v. State, Fla.App. 163 So. 2d 527; Phillips v. State, Fla.App. 164 So. 2d 858; Holmes v. State, Fla.App., 165 So. 2d 433; Archer v. State, Fla.App., 166 So. 2d 163; Carver v. State, Fla.App., 171 So. 2d 898. See also the opinion of the Third District Court of Appeal in Furman v. State, 162 So. 2d 308. We approve the views on the subject announced by the Courts of Appe…
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Falagon v. State, 167 So. 2d 62 (Fla. 2d DCA 1964)…at an indigent defendant was aware of a right to counsel without cost to him, his failure to indicate indigency does not constitute an affirmative waiver of the right. See Adkins v. State, Fla.App.1964, 165 So. 2d 231, Holmes v. State, Fla.App.1964, 165 So. 2d 433, opinion filed June 17, 1964. The trial court’s opinion is also liberally sprinkled with matters dehors the record, which matters we have previously held-are improper for consideration on Rule 1 motion — unless they are first properly made a part o…
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Elehue Smith v. State, 210 So. 2d 25 (Fla. 3d DCA 1968)…PER CURIAM. Affirmed. See Plymale v. State, Fla.App.1967, 201 So. 2d 85; Evans v. State, Fla.App.1964, 167 So. 2d 888; Holmes v. State, Fla.App.1964, 165 So. 2d 433; and Busby v. Holman, 356 F. 2d 75 (5th Cir.1966).…
Authorities Cited
- King v. State, 157 So. 2d 440 (Fla. 2d DCA 1963)
- Beadles v. State, 162 So. 2d 4 (Fla. 2d DCA 1964)
- Ellis Dixon v. State, 163 So. 2d 771 (Fla. 2d DCA 1964)
- Phillips v. State, 164 So. 2d 858 (Fla. 2d DCA 1964)