ROBERT A. TREPANIER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Petitioner Robert Trepanier, held under 1960 felony convictions based on guilty pleas, challenged his conviction claiming he was not advised of his right to state-appointed counsel. The Florida Supreme Court held that petitioner was entitled to an evidentiary hearing to determine whether he knowingly waived his right to appointed counsel.
Petitioner is entitled to an adversary hearing to determine whether he knowingly waived his right to counsel appointed by the court. A mere negative answer to the question whether a defendant had counsel or desired a lawyer is insufficient to constitute a waiver as a matter of law.
“he was under the impression that he could only have counsel if he paid for it”
Establishes petitioner's mistaken belief regarding the right to appointed counsel
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Join FLexlaw to unlock all legal intelligencePetitioner was detained under judgments and sentences from 1960 following guilty pleas to multiple felony charges. He contended he pleaded guilty with…
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Petitioner is detained under several judgments and sentences entered in 1960 on pleas of guilty to a number of felony charges. He contends that he pleaded guilty without advice of counsel because “he was under the impression that he could only have counsel if he paid for it” and he had no money to engage counsel.
Petitioner has previously filed a motion to vacate the subject judgments and sentences pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, which motion was denied. An appeal of the denial was dismissed by the district court of appeal for procedural reasons. He then filed this petition for writ of habeas corpus.
In his order denying the Criminal Procedure Rule No. 1 motion to vacate, the trial judge found that the defendant was fully advised of all matters necessary to be explained to defendant, including his right to counsel and that petitioner had therefore waived his right to counsel. However, it does not appear that petitioner was advised that he had a right to counsel furnished by the state or appointed by the court.
In our recent opinion in a similar case, Mason v. State, 176 So.2d 76, opinion filed June 9, 1965, we held that the “negative answer to the mere question whether Mason had counsel or desired a lawyer, was insufficient to constitute a waiver as a matter of law.” We then held that Mason was entitled to an adversary hearing on his motion to vacate in order to determine whether he had knowingly waived the right to counsel appointed by the court. We think that the petitioner in this cause is entitled to such an adversary hearing to determine the same issue in this cause. It does not appear that he has been given such a hearing.
We think that such a hearing can be more inexpensively and expeditiously conducted on a motion to vacate under Criminal Procedure Rule No. 1 than by a commissioner appointed by this court on this petition for habeas corpus.
Therefore, the writ of habeas corpus is discharged, but without prejudice to the petitioner’s right again to present the matters contained in his petition to the proper trial *163court pursuant to Criminal Procedure Rule No. 1.
It is so ordered.
THORNAL, C. J., and ROBERTS, O’CONNELL and ERVIN, JJ., concur.
THOMAS and CALDWELL, JJ., dissent.
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THE Florida BAR v. Stafford, 542 So. 2d 1321 (Fla. 1989)…ension); The Florida Bar v. Curry, 211 So. 2d 169 (Fla.) (six-month suspension), cert. denied, 393 U.S. 981, 89 S.Ct. 451, 21 L.Ed.2d 442 (1968); The Florida Bar v. Scott, 197 So. 2d 518 (Fla.1967) (six-month suspension); The Florida Bar v. Britton, 181 So. 2d 161 (Fla.1965) (three-month suspension); State ex rel. Florida Bar v. Bieley, 120 So. 2d 587 (Fla.1960) (six-month suspension); State ex rel. The Florida Bar v. Dawson, 111 So. 2d 427 (Fla.1959) (eighteen-month suspension). [*1323] Due primarily to opin…
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THE Florida BAR v. Wolfe, 759 So. 2d 639 (Fla. 2000)…. Gaer, 380 So. 2d 429 (Fla.1980) (public reprimand); Florida Bar v. Curry, 211 So. 2d 169 (Fla.1968) (six-month suspension); Florida Bar v. Abramson, 199 So. 2d 457 (Fla.1967) (public reprimand); Scott (six-month probation); Florida Bar v. Britton, 181 So. 2d 161 (Fla.1965) (three-month suspension); State ex rel. Florida Bar v. Swidler, 159 So. 2d 865 (Fla.1964) (public reprimand); State ex rel. Florida Bar v. Bieley, 120 So. 2d 587 (Fla.1960) (six-month suspension); Dawson (eighteen-month suspension); State…
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Authorities Cited
- Mason v. State, 176 So. 2d 76 (Fla. 1965)