ARTHUR F. CHEATHAM, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Cheatham challenges his conviction for aggravated assault, arguing he was tried and convicted while unknowingly represented by a law student intern who was not a Florida Bar member and was not properly supervised. The appellate court reversed the conviction, holding that an indigent defendant has a right to court-appointed counsel and that the trial court failed to ensure proper representation and supervision.
An indigent defendant charged with a felony is entitled to court-appointed counsel by a qualified attorney unless he understandingly and intelligently waives that right. Where the record does not refute allegations that a defendant was unknowingly represented by a person not a member of The Florida Bar and that such person was not properly supervised as required by rule, the conviction must be reversed and the judgment struck.
[1] A defendant is entitled to court-appointed counsel for a felony charge unless the right is knowingly and intelligently waived.
[2] A motion for post-conviction relief must be granted where the record does not refute, and an evidentiary hearing does not disprove, allegations that the defendant was unk…
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Join FLexlaw to unlock all legal intelligence“An indigent defendant charged with a felony is entitled to court-appointed counsel unless he understandingly and intelligently waives that right.”
Establishes the fundamental right of indigent defendants to qualified counsel and the requirement for knowing waiver.
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Join FLexlaw to unlock all legal intelligenceAppellant was tried and convicted of aggravated assault on March 31, 1976. He was represented at trial by a legal intern who was not a member of The F…
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PEARSON, Judge.
The appellant seeks review of the denial of his motion for relief pursuant to Fla.R. Crim.P. 3.850. The motion was denied after an evidentiary hearing. The motion alleged, and neither the record nor the evidence at the hearing refuted, that the appellant was tried and convicted of the crime of aggravated assault on March 31, 1976, while being represented by a legal intern who was assigned without the appellant’s knowledge or agreement. There is the additional allegation that the legal intern, who was not a member of The Florida Bar, was not supervised by a member of the bar during the trial. The evidence at the hearing does not adequately refute either the charge that the defendant was, unknown to him, represented by a person who was not an attorney nor, in our view, does it adequately support a finding that the intern was adequately supervised. See Integration Rule of The Florida Bar, Article XVIII, § 11(A) and (B)1 .
An indigent defendant charged with a felony is entitled to court-appointed counsel unless he understandingly and intelligently waives that right. We conclude that where the record does not refute, nor the evidentiary hearing disprove, the allegations of the appellant that he was unknowingly represented by a person not a member of The Florida Bar and that such person was not properly supervised, as provided by the rule, the motion must be granted.
The cause is, therefore, returned to the trial court with directions to strike the judgment finding the defendant guilty and to discharge the defendant from this cause.
In view of the fact that the defendant is presently and has been for some time incarcerated, the time for petition for rehearing of this decision is limited to three days from the date of the filing of this opinion.
Reversed.
. “A. An eligible law student may appear in any court or before any administrative tribunal in this state on behalf of any indigent person if the person on whose behalf he is appearing has indicated in writing his consent to that appearance and the supervising lawyer has also indicated in writing approval of that appearance. In such cases the supervising attorney shall be personally present when required by the trial judge who shall determine the extent of the eligible law student’s participation in the proceeding.
“B. An eligible law student may also appear in any criminal matter on behalf of the state with the written approval of the prosecuting attorney or his authorized representative and of the supervising lawyer. In such cases the supervising attorney shall be personally present when required by the trial judge who shall determine the extent of the law student’s participation in the proceeding.”
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Citator
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Durcan v. State, 383 So. 2d 248 (Fla. 3d DCA 1980)…3d DCA 1979); and Clark v. State, 363 So. 2d 331 (Fla.1978). Failure to make an objection at the trial level or to raise the matter as an issue on appeal does not preclude consideration of fundamental error. Roth v. State, supra; Cheatham v. State, 364 So. 2d 83 (Fla.3d DCA 1978); and Young v. State, 177 So. 2d 345 (Fla.2d DCA 1965). Where the error is apparent on the record, courts will raise the issue themselves and consider the merits. Wyche v. State, 178 So. 2d 875 (Fla.2d DCA 1965). The record must dis…
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In the Interest of C.B., 546 So. 2d 447 (Fla. 4th DCA 1989)…, was knowingly given. The fact that the defendant, a juvenile, was advised of the intern’s status is no substitute for proof in the record reflecting that the defendant understood his options and knowingly waived his rights. Cf. Cheatham v. State, 364 So. 2d 83 (Fla. 3d DCA 1978), cert. denied, 372 So. 2d 471 (Fla.1979). The judgment and sentence are reversed. We find the other issues raised by appellant to be without merit. ANSTEAD and LETTS, JJ., concur.…
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Duval v. State, 744 So. 2d 523 (Fla. 2d DCA 1999)…te, nor the evidentiary hearing disprove, the allegations of the appellant that he was unknowingly represented by a person not a member of The Florida Bar and that such person was not properly supervised, as provided by the rule.” Cheatham v. State, 364 So. 2d 83, 84 (Fla. 3d DCA 1978). Cheatham does not compel a reversal in this case because here the trial court found, based on the evidentiary hearing, that Duval knew he was being represented in part by an intern and the intern was, in fact, properly superv…
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