Morgano v. State

439 So. 2d 924
CourtDistrict Court of Appeal of Florida
DecidedOctober 7, 1983
Docket82-689
StatusPublished
Cited by11 cases

This text of 439 So. 2d 924 (Morgano v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morgano v. State, 439 So. 2d 924 (Fla. Ct. App. 1983).

Opinion

439 So.2d 924 (1983)

John MORGANO, Appellant,
v.
STATE of Florida, Appellee.

No. 82-689.

District Court of Appeal of Florida, Second District.

October 7, 1983.
Rehearing Denied October 31, 1983.

*925 Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

HOBSON, Acting Chief Judge.

John Morgano, who appeared for his scheduled jury trial without an attorney despite having been found solvent and having been admonished to retain counsel before the scheduled date of trial, appeals an order which adjudicated him guilty of burglary pursuant to the jury's verdict and sentenced him to a ten-year term of imprisonment. We affirm the finding of solvency, but reluctantly reverse the conviction and sentence and remand for a new trial because the court never made a penetrating and comprehensive examination of Morgano so that it could treat his implicit waiver of the right to counsel as a knowing and intelligent one.

Morgano was charged by information with burglary and grand theft. He retained Daniel Levin as his lawyer for the sole purpose of seeking a reduction in bond. After the bond reduction hearing, he consulted with Levin about the possibility of Levin's representing him on the pending charges. He decided not to employ Levin any further after failing to agree with Levin as to available defenses and telling Levin that he would not be able to pay for the extensive discovery which Levin contemplated. He subsequently retained attorney Marvin Kessler. However, he thereafter submitted an affidavit claiming that he was indigent and requesting that the court appoint the public defender to represent him if Kessler did not appear on his behalf. There is nothing in the record to indicate that Kessler ever made an appearance.

A hearing was held in order to determine whether Morgano was indeed insolvent. After testimony was heard, the proceeding concluded with the following conversation between the court and Morgano:

THE COURT: ... The Court will expect the case to go to trial next week and I suggest that if you want to be represented by an attorney, you get one.
Your motion for the Public Defender is denied.
THE DEFENDANT: I have to go to trial without an attorney?
*926 THE COURT: The case will go to trial next week.
I don't know. That's up to you, whether you want to hire one or not.
THE DEFENDANT: Well, I can't.

Eleven days later Morgano appeared for his scheduled jury trial without an attorney. Still contending that he was indigent, he again asked the court to appoint the public defender to represent him. He also objected to being tried without an attorney, informing the court that he was not versed in the law and that he would not defend himself. The court proceeded to hold the trial nonetheless, but it resulted in a mistrial for a reason not important here.

Ten days later another jury trial commenced as scheduled after Morgano had again presented himself without counsel, again requested appointment of the public defender, and again objected to being tried without an attorney. The trial ended with the jury returning a guilty verdict only as to the burglary charge.

On appeal, Morgano argues, inter alia, that the trial court erred 1) by finding him solvent; and 2) by failing to ascertain whether his "implied" waiver of his right to counsel was made knowingly and intelligently.

As to Morgano's first contention, we agree with the state's assertion that the court's finding of solvency was supported by competent, substantial evidence and was made in compliance with section 27.52, Florida Statutes (1981), which outlines the factors to be considered in determining indigency. The police officer who had investigated the charges in question advised the court at the hearing that Morgano had told him that during the preceding year he had netted approximately $250,000 plying the burglary trade. See § 27.52(2)(b)2, Fla. Stat. (1981). He also said that at the time of Morgano's arrest Morgano was renting a condominium for $800 per month. The officer indicated further that the residence contained expensive furniture owned by Morgano. See § 27.52(2)(c)2, Fla. Stat. (1981). Finally, he told the court that just before entering the courtroom to testify he had observed Morgano give his wife two $100 bills to post bond for him on a separate, unrelated charge. Morgano then advised the court that he had applied for representation by the public defender because he had spent all his money to post bond and to pay the retainer fees for Levin and Kessler. However, he conceded that he had posted a bond of $51,000 on the charges in question. See § 27.52(2)(c) 1, Fla. Stat. (1981).

Regarding Morgano's second argument, which he raised by way of supplemental brief, we have been unable to locate any Florida cases like this where a solvent accused who is mentally competent and suijuris appears at trial without counsel despite an earlier admonishment to retain an attorney, is tried without counsel over his objections, is convicted and sentenced, but was never examined before trial in a thorough manner in order to ascertain whether his implicit waiver of the right to counsel was made knowingly and intelligently. However, research shows that there are at least several out-of-state courts which have confronted a factual scenario similar to that here. See Fitzgerald v. State, 254 Ind. 39, 257 N.E.2d 305 (1970); State v. Longo, 132 N.J.L. 515, 41 A.2d 317 (N.J. 1945); Commonwealth v. Wentz, 280 Pa.Super. 427, 421 A.2d 796 (Pa. Super. Ct. 1981); State v. McClain, 6 Conn. Cir. Ct. 58, 264 A.2d 581 (Conn. Cir. Ct. 1969).

The solvent defendant in each of the above mentioned out-of-state cases appeared at trial without an attorney. His presence at trial without counsel was directly attributable in each case to his own inaction. He had had ample opportunity in each case to procure the assistance of counsel before the scheduled date of trial. The trial court in each case found a waiver of the defendant's right to counsel due to his neglect or refusal to retain an attorney. However, there is nothing to indicate in any of the cases that the court ever made "a penetrating and comprehensive examination of all the circumstances" in order to determine whether the waiver was made "with an apprehension of the nature of the charges, the statutory offenses included *927 within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter." Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948).[1] Each defendant basically argued on appeal that the court had forced him to go to trial without an attorney in violation of his right to counsel under the federal constitution and respective state constitution.

Fitzgerald

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439 So. 2d 924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgano-v-state-fladistctapp-1983.