KITCHENS
v.
SMITH, WARDEN
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A conviction obtained in violation of the Sixth Amendment right to counsel is void, and this right applies retroactively to convictions predating Gideon v. Wainwright.
Petitioner pleaded guilty to robbery in 1944 without counsel and was unable to afford one due to indigency. He escaped, served other sentences, and wa…
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Per Curiam.
Petitioner pleaded guilty to robbery in a Georgia state court in 1944. He was not represented by counsel at any time. While serving his sentence, petitioner escaped and did not return to Georgia until 1969, when he was returned to finish the remainder of his sentence. He then brought this habeas corpus action in county court, alleging that his conviction was void under Gideon v. Wainwright, 372 U. S. 335 (1963).
The county court denied relief because Gideon was “recent law and under the law at the time of his sentence, the sentence met the requirements of the law at that time.” This was error since as we have often noted, Gideon is fully retroactive. See, e. g., Linkletter v. Walker, 381 U. S. 618, 639 (1965); Desist v. United States, 394 U. S. 244, 250 n. 15 (1969); McConnell v. Rhay, 393 U. S. 2, 3 (1968); Stovall v. Denno, 388 U. S. 293, 297-298 (1967). On appeal, the Georgia Supreme Court affirmed the denial of habeas corpus on different grounds, saying that petitioner did not testify at the habeas corpus hearing that he “wanted a lawyer, asked for one, or made any effort to get one” or that “because of his poverty, or for any other reason, he was unable to hire a lawyer.” 226 Ga. 667, 177 S. E. 2d 87-88 (1970).
As this Court has said, however, “[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” Carnley v. Cochran, 369 U. S. 506, 513 (1962). This applies to guilty pleas as well as to trials. Uveges v. Pennsylvania, 335 U. S. 437, 441 (1948).
Of course, to establish his right to appointed counsel in 1944, petitioner had the burden of proving his inability at that time to hire an attorney. His petition for habeas corpus specifically averred that he was unable to obtain counsel “because of his impoverished condition” at that time. The respondent denied this allegation and thus put the matter in issue.
At the hearing, petitioner testified, “I was a lot younger and I didn’t have any money and I didn’t have a lawyer . . . .” (Emphasis added.) The State made no effort whatever to contradict petitioner’s testimony that he was indigent; no part of its case went to the issue of indigency. In this light, the Georgia Supreme Court’s finding that petitioner “did not testify . . . that because of his poverty, or for any other reason, he was unable to hire a lawyer” is explicable only under the most rigid rules of testimonial construction. Though petitioner did not precisely testify that his failure to obtain a lawyer was a result of his indigency, this was the undeniable implication of his testimony, especially in view of the habeas corpus petition’s allegation that petitioner was unable to hire an attorney “because of” his indigency. The hearing below, as the transcript shows, was conducted informally. Petitioner had no lawyer, and introduced no evidence other than his own testimony. He testified discursively; no objections were made by the State, nor did it cross-examine petitioner on the issue of indigency.
It is our view that on this record petitioner proved he was without counsel due to indigency at the time of his conviction. The petition for certiorari is granted, the judgment of the Georgia Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (24 total)
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Reynold Enrique v. State, 408 So. 2d 635 (Fla. 3d DCA 1981)…sed to initiate proceedings for the appointment of counsel by the filing of the affidavit called for by Section 27.52, Florida Statutes (1979). Billions v. State, 399 So. 2d 1086 (Fla. 1st DCA 1981); Fla.R.Crim.P. 3.111(d)(1). See Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971) (right to counsel not dependent on request). The statutory affidavit need only be filed at the trial court’s request after it has first advised the accused of his right to appointed counsel if he is financially…
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Blatch v. State, 389 So. 2d 669 (Fla. 3d DCA 1980)…stance of counsel in trial and appellate proceedings has been held to be retroactive. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), declaring the right to counsel at felony trials, was held retroactive in Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971); was held retroactive as to prior convictions used to increase punishment in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); and was held retroactive as to prior convictions used to impeach…
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Lawson v. State, 312 So. 2d 522 (Fla. 4th DCA 1975)…because he — as an indigent — had been denied counsel, Argersinger v. Hamlin, supra. Defendant now seeks certiorari to obtain a reversal of his escape conviction and sentence. He argues that since Argersinger is retroactive, (see Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971) defining the reach of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)), and since the original municipal court judgment has been held void for failure to comply with Argersinger’s directiv…
Previewing 3 of 24 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)
- Stovall v. Denno, 388 U.S. 293 (U.S. 1967)
- Linkletter v. Walker, 381 U.S. 618 (U.S. 1965)
- Carnley v. Cochran, 369 U.S. 506 (U.S. 1962)
- Desist v. United States, 394 U.S. 244 (U.S. 1969)
- McCONNELL v. Rhay, 393 U.S. 2 (U.S. 1968)
- Uveges v. Pennsylvania, 335 U.S. 437 (U.S. 1948)