FRANCISCO SOTOMAYOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1969-06-20
No. 68-118
LILES, C. J., and MANN, J., concur.
224 So. 2d 357 Florida District Court of Appeal, Second District (1969) Positive Treatment
Cited by 2 cases

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Synopsis

Francisco Sotomayor was convicted of manslaughter under two indictments for first-degree murder after being jointly tried with three codefendants represented by the same court-appointed attorney. He appeals on grounds of ineffective assistance of counsel and insufficient evidence, but the appellate court affirms his convictions, finding no prejudice from joint representation and sufficient evidence of aiding and abetting.


Holding

The court affirmed the convictions, holding that even assuming the Baker v. State effective assistance doctrine applied, Sotomayor failed to demonstrate prejudice or request separate counsel, and that substantial evidence supported his conviction as an aider and abettor to the homicides.


Key Quotes

“Even assuming that the Baker rationale is applicable, which we do not hold, the appellant did not bring himself within the purview of that case by requesting separate counsel, or by demonstrating that prejudice resulted.”

Establishes that even if the effective assistance doctrine applied, appellant failed to meet its requirements by not requesting separate counsel or showing prejudice.

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Facts & Procedural History

Appellant was jointly tried with three codefendants under two indictments charging first-degree murder. All four codefendants were declared insolvent …

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Opinion of the Court
McNULTY, Judge.

McNULTY, Judge.

Appellant was jointly tried with three codefendants under two indictments charging first degree murder, both of which indictments were joined for trial. The jury convicted him of manslaughter under each indictment and he directly appeals the judgments thereof.

All four of the codefendants were declared to be insolvent, and were each jointly represented by the same court-appointed attorney. The trial of this case was begun on September 11, 1967, and the verdicts were returned two days later. The trial court did not enter any judgment thereon at that time pending a determination of motions for new trial, which were subsequently denied. The judgments appealed from were thereafter entered on December 19, 1967.

Appellant raises two arguable points on appeal. First, he alleges that he was denied effective assistance of counsel,1 and thus the convictions are void under the holding of the Florida Supreme Court in Baker v. State.2 We note that the decision in Baker was handed down on September 20, 1967; and it can be seen from the above timetable of material events that the decision became effective after the trial hereof but before the entry of the judgments appealed from.

We held in Dunbar v. State,3 that the decision in Baker would be given prospective effect only. This decision was upheld by the Supreme Court on our certification of the question.4 However, we don’t have to decide whether the Baker case is applicable under the chronology here. Even assuming that the Baker rationale is applicable, which we do not hold, the appellant did not bring himself within the purview of that case by requesting separate counsel, or by demonstrating that prejudice resulted.5 Indeed, the record affirmatively shows, from the testimony of each of the codefendants including appellant, that the interests and defenses of all codefendants were essentially the same. Certainly they were consistent and in no way mutually repugnant. Furthermore, the evidence against each of them was identical in most crucial respects; and, in any event, was not so disproportionately strong as against any of his codefendants as to even suggest that appellant was unduly prejudiced.

Appellant’s second contention is that the evidence was insufficient to support a judgment of guilt. We have reviewed the record and find it replete with evidence sufficient to support the conclusion that appellant was an aider and abettor of each homicide, even if it could be said *359that he was not the actual perpetrator of either. The trial court properly charged the jury with regard to aiding and abetting, and further correctly charged that an aider and abettor can be tried and convicted as a principal in the first degree.6

The judgment and conviction appealed from should be, and it is,

Affirmed.

LILES, C. J., and MANN, J., concur.


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Citator

Cited By

  • Earton David Jones v. State, 248 So. 2d 517 (Fla. 3d DCA 1971)
    …ers within the automobile. If the appellant and the others outside the automobile were not active participants in the robbery, they were certainly aiders and abettors. Prather v. State, Fla.App.1966, 182 So. 2d 273; Sotomayor v. State, Fla.App.1969, 224 So. 2d 357; DeLaine v. State, Fla.App.1970, 230 So. 2d 168; § 776.011, F.S.A. Therefore, for the reasons above stated, the judgment of conviction and sentence thereon be and the same are hereby affirmed. Affirmed.…
  • Moran v. Anderson, 234 So. 2d 118 (Fla. 1969)
    …Certiorari denied without opinion. 224 So. 2d 357.…

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