JERRY O'NEAL PHILLIPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court denied a petition for a writ of mandamus seeking the appointment of counsel for an indigent appellant, holding that the Sixth Amendment right to counsel does not apply to post-conviction proceedings like a motion to vacate a judgment.
No, an indigent defendant does not have an absolute right to appointed counsel in proceedings on a motion to vacate a judgment, as such proceedings are not considered a step in a criminal prosecution under the Sixth Amendment. Furthermore, a defendant has no voice in the selection of appointed counsel.
“This question is now moot, since the record on appeal has been filed with this Court, December 16, 1965.”
Establishes that one part of the appellant's petition was moot.
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Join FLexlaw to unlock all legal intelligenceThe appellant filed a petition for a writ of mandamus to compel the clerk to file a transcript of record and also moved for the appointment of compete…
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Appellant filed petition for writ of mandamus on December 14, 1965, to force the clerk to file transcript of record. This question is now moot, since the record on appeal has been filed with this Court, December 16, 1965.
Said petition, for mandamus also contained a renewed motion for appointment of competent counsel to represent the petitioner on appeal. It expressly provided that “petitioner will not accept counsel from the office of Public Defender.”
The appeal in this case being from an order of the trial court denying the defendant’s motion to vacate and set aside judgment under Florida Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix, it does not constitute a step in a criminal prosecution within the contemplation of the Sixth Amendment, United States Constitu*47tion, and therefore the defendant, although indigent, is not entitled, as an absolute organic right, to the appointment of counsel in the proceedings sub judice. The defendant specifically stated that he would not accept counsel from the office of Public Defender. Even if the trial court, in the exercise of its discretion, determined that the assistance of counsel was essential to accomplish a fair and thorough presentation of the prisoner’s claim, under the Fifth Amendment to the United States Constitution, the prisoner has no voice in the selection of such counsel. State v. Weeks, 166 So.2d S92, 896, 897 (Fla.Sup.Ct., 1964). For the reasons stated we find no sufficient elements contained in the motion to warrant the appointment of counsel.
Therefore the petition for mandamus is denied in its entirety.
WIGGINTON, Acting C. J., and STUR-GIS, J., concur.
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The City OF Winter Garden v. Norflor Constr. Corp., 396 So. 2d 865 (Fla. 5th DCA 1981)…e, e. g., Scarborough v. State, 262 So. 2d 674 (Fla. 1972); Johnson v. Prosecuting Attorney for the Court of Record, 233 So. 2d 377 (Fla. 1970); State ex rel. Lloyd v. City of Ft. [*867] Pierce, 206 So. 2d 251 (Fla. 4th DCA 1968); Phillips v. State, 182 So. 2d 46 (Fla. 1st DCA 1966); State ex rel. Mann v. Burns, 109 So. 2d 195 (Fla. 1st DCA 1959). Although mandamus actions against municipal and private corporations have been permitted, writs of mandamus are essentially personal actions directed to particula…