NOLAN FELIX BURCHIL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Nolan Felix Burchil, convicted of rape and sentenced to life imprisonment, appealed the summary denial of his second petition for post-conviction relief under Florida Criminal Procedure Rule One, arguing he was denied appellate counsel because he was not informed that counsel would be appointed if he could not afford it. The court affirmed the denial, holding that while the right to appellate counsel exists, trial courts are not required to affirmatively inform defendants of this right at sentencing.
The court held that while indigent defendants have a right to appellate counsel, trial courts are not required to affirmatively advise convicted persons of this right or inquire into their indigency at sentencing. A defendant seeking post-conviction relief must show that the state affirmatively deprived him of his constitutional rights, not merely that he was unaware counsel would be appointed.
“an indig'ent's right to appellate counsel, which Douglas recognizes as an 'absolute' right guaranteed under both the Equal Protection Clause and Due Process Clause, is not absolute in the sense that the right to trial counsel is absolute. It is not necessary that the trial judge initiate action toward the appointment of appellate counsel by advising a convicted person of his rights or by making any inquiry as to his indi-gency”
Establishes that appellate counsel rights, while constitutionally guaranteed, do not require trial courts to affirmatively inform defendants of the right or inquire about indigency
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Join FLexlaw to unlock all legal intelligenceBurchil was convicted of rape and sentenced to life imprisonment. After conviction, he filed a second petition for post-conviction relief alleging tha…
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Appellant was found guilty of rape and sentenced to life imprisonment. He appeals the summary denial of his second petition pursuant to Criminal Procedure Rule One, F.S.A. ch. 924 Appendix. He urges that he is entitled to a hearing in the trial court upon his allegation:
“That after the Defendant’s conviction he was insolvent and financially unable to employ counsel to represent him or [sic] his appeal, that [sic] he was not informed by his attorney or by the court if he was not able to employ counsel for this appeal that the court would employ counsel for him”.
It was further alleged that defendant was indigent and that defendant was unlearned in the law.
It is true that the denial of the assistance of counsel for a direct appeal may, where other facts are present, constitute a ground for relief under Criminal Procedure Rule One. See State v. Weeks, Fla.1964, 166 So.2d 892; Donald v. State, Fla.App.1963, 154 So.2d 357; DeMotte v. State, Fla.App. 1967, 203 So.2d 662.
In Jackson v. State, Fla.App. 1964, 166 So.2d 194, we held that a petition alleging the refusal of the appointed counsel to prosecute an appeal stated sufficient grounds for an evidentiary hearing. See also Hinton v. State, Fla.App. 1965, 177 So. 2d 552. It will be noted that in the present petition the appellant does not say that he was in any way frustrated in his attempt to appeal but simply that no one told him that counsel would be furnished to him if he wished to appeal.
An allegation of this type was discussed in Pate v. Holman, 5 Cir.1965, 341 F.2d 764, 775 (1965). The Court stated that:
“ * * * an indig'ent’s right to appellate counsel, which Douglas recognizes as an ‘absolute’ right guaranteed under both the Equal Protection Clause and Due Process Clause, is not absolute in the sense that the right to trial counsel is absolute. It is not necessary that the trial judge initiate action toward the appointment of appellate counsel by advising a convicted person of his rights or by making any inquiry as to his indi-gency, although such minimal action at the time of sentencing seems highly desirable. * * * For a petitioner to be entitled to post-conviction relief, it is not enough to show that indigency occasioned the petitioner’s inability to employ counsel or to appeal; the petitioner must show that the State deprived him of his Fourteenth Amendment rights.”
See also Murray v. State, Fla.App.1966, 191 So.2d 292, Edge v. Wainwright, 5 Cir. 1965, 347 F.2d 190.
Affirmed.
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Citator
Cited By
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Davis v. State, 222 So. 2d 772 (Fla. 3d DCA 1969)…[*773] PER CURIAM. Affirmed on the authority of Burchil v. State, Fla.App.1967, 205 So. 2d 9; Nelson v. State, Fla.App.1968, 208 So. 2d 506; Pierson v. State, Fla.App.1968, 214 So. 2d 17; Rushing v. State, Fla.App.1969, 218 So. 2d 481; Pate v. Holman, 5th Cir. 1965, 341 F. 2d 764. Affirmed.…
Authorities Cited
- State v. Weeks, 166 So. 2d 892 (Fla. 1964)
- Pate v. Holman, 341 F.2d 764 (5th Cir. 1965)
- Jackson v. State, 166 So. 2d 194 (Fla. 3d DCA 1964)
- Edge v. Wainwright, 347 F.2d 190 (5th Cir. 1965)
- Murray v. State, 191 So. 2d 292 (Fla. 3d DCA 1966)
- Donald v. State, 154 So. 2d 357 (Fla. 2d DCA 1963)
- DeMOTTE v. State, 203 So. 2d 662 (Fla. 1st DCA 1967)