VINCENT B. DOVICO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Dovico appeals the trial court's denial of his petition to vacate a guilty plea conviction, arguing he was denied effective counsel when questioned before his attorney was appointed, resulting in incriminating statements. The appellate court affirmed the trial court's denial, finding insufficient evidence that his statements rendered the plea involuntary.
The trial court properly denied the petition to vacate. Although Escobedo and Miranda established the right to counsel at the pre-trial questioning stage, those decisions were not applied retroactively. On the facts here, there was insufficient evidence showing the incriminating statement rendered the plea involuntary or that there was coercion, intimidation, or deceit.
“The right to counsel at such a stage of the proceedings is now well established by Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.”
Establishes that the right to counsel during custodial interrogation is well established by precedent.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDovico was charged with a felony in September 1961 and brought to court in November 1961, where a Public Defender was assigned. Before the appointment…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Motion To Vacate Conviction cases and more on FLexlaw
This appeal by a defendant in a criminal case challenges an order of the trial court denying his petition under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix to vacate a judgment of conviction upon a plea of guilty. The petition was denied without hearing evidence, but the order was reversed with directions to grant a hearing upon the allegations of the petition. See Dovico v. State, Fla.App.1965, 178 So. 2d 340. The trial court has now heard the evidence and the order again denying the petition, together with the record of the hearing, is now before this court for review.
The information against the defendant charging a felony was filed September 29, 1961. He was brought before the court November 3, 1961, at which time a Public Defender was assigned to represent him. Defendant then advised the Public Defender that he desired to enter a plea of guilty. On November 7, 1961, he again was brought into open court with the Public Defender as his counsel and arraigned. He plead guilty and the judgment in question followed. The petition to vacate the judgment was filed February 4, 1965.
Appellant argues that he was denied effective counsel when questioned by arresting officers and also by the trial judge prior to appointment of the Public Defender to represent him, at which time he made incriminating statements which lead to the plea of guilty. See Wright v. Dickson, 9 C.A. 1964, 336 F.2d 878.
The right to counsel at such a stage of the proceedings is now well established by Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.
Escobedo v. State of Illinois was decided June 22, 1964, and Miranda v. State of Arizona was decided June 13, 1966. The rules stated there are not to be given retroactive application. Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Nevertheless, upon such a claim as appellant makes here the court must consider all of the circumstances and determine therefrom the issue of voluntariness in defendant’s incriminating conduct, if any, leading to conviction. If it appears that the conviction was “the product of a will overborne” the conviction must be vacated. Davis v. State of North Carolina, 1966, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed. 2d 895.
The “incriminating” statement which appellant says he made before he had the benefit of counsel was an oral one. Details of the statement are not given in the record. There is no showing that the Public Defender was unaware of the statement and all other circumstances surrounding his client’s arrest.
We find no evidence of a character sufficient to support a determination that such an “incriminating” statement rendered appellant’s subsequent plea of guilty involuntary or that there was coercion, intimidation or deceit in the proceedings. Cf. Davis v. North Carolina, supra.
The burden was upon the appellant to prove that the plea of guilty was “the product of a will overborne.” See Harris v. State, Fla.App.1965, 177 So.2d 543. His proof fell short of sustaining the burden.
Affirmed.
ANDREWS, Acting C. J., and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Heffner v. State, 218 So. 2d 787 (Fla. 1st DCA 1969)…PER CURIAM. The briefs and the record on appeal having been read and given full consideration, and appellant having failed to demonstrate reversible error, the order of the lower court hereby appealed is affirmed. Dovico v. State (Fla.App.1967), 199 So. 2d 308; Lee v. State (Fla.App.1965), 172 So. 2d 621. WIGGINTON, C. J., and CARROLL, DONALD K. and RAWLS, JJ., concur.…
-
Anderson v. State, 210 So. 2d 250 (Fla. 2d DCA 1968)…S.Ct. 1772, 16 L.Ed.2d 882; Watson v. State, Fla.1966, 190 So. 2d 161; Collins v. State, Fla.App.1967, 197 So. 2d 574; Mascarel v. State, Fla.App.1967, 198 So. 2d 649; Jones v. State, Fla.App.1967, 200 So. 2d 574; and Dovico v. State, Fla.App.1967, 199 So. 2d 308. LILES, C. J., and ALLEN and PIERCE, JJ., concur.…
Authorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- Escobedo v. Illinois, 378 U.S. 478 (U.S. 1964)
- Johnson v. New Jersey, 384 U.S. 719 (U.S. 1966)
- Davis v. North Carolina, 384 U.S. 737 (U.S. 1966)
- Wright v. Dickson, 336 F.2d 878 (9th Cir. 1964)
- Harris v. State, 177 So. 2d 543 (Fla. 3d DCA 1965)
- Dovico v. State, 178 So. 2d 340 (Fla. 2d DCA 1965)