Petition — Wainwright v. Sykes
Supreme Court brief1977
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APR 28 1976
BICHALL KOUAK, IR, CLER
In The ee RK
“—--s
SUPREME COURT OF THE UNITED STATES
October Term, 1975
No. €5-1578
LOUIE L. WAINWRIGHT, ay eee hl
Department of Offender Rehabil-
-ditation, State of Florida,
Petitioner,
vs.
JOHN SYKES, #003316,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
ROBERT L,. SHEVIN
ATTORNEY GENERAL,
CHARLES CORCES, JR.
Assistant Attorney General
419 Stovall's Professional Building
305 North Morgan Street
Tampa, Florida 33602
Counsel for Petitioner
TABLE OF CONTENTS
~ OPINION BELOW
_ JURISDICTTON
QUESTIONS PRESENTED
AUTHORITIES INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING WRIT
CONCLUSION
CERTIFICATE OF SERVICE
APPENDIX:
Opinion of the United States
Court of Appeals, Fifth Circuit
Order of the United States
District Court, Tampa Division
Waiver of John Sykes
Rule 3.190(i), Florida Rules
of Criminal Procedure, 1972
Denial of Petition for Rehearing
en bane
Judgment of the United States
Court of Appeals, Fifth Circuit
Page
. 31
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TABLE OF CITATIONS
CASES
Bl . &t
7596 Bo. 2d 264 (Fla.App. 1968)
Curry v. Wilson,
405 F.2d 110 (9th Cir. 1969)
Davie v. United Statee,
411 U.S. 233 (1973)
Fay v. Nota,
372 U.S. 391 (1963)
Henry v. Misetesippt
399 U.S. 443 (1965)
Jackson v. Denno,
378 U.S. 368 (1964)
Lego v. Twome
404° U.S. 499 (1972)
Pinto v. Pierce,
389 U.S. 31 (1967)
Sime v. Georgta,
385 U.S. 538 (1967)
United Statee ex rel Allum v.
Twome 484 F.2d 740 (7th
Cir. {$73)
Thomas v. State
249 So.2d 510 (Fla.App. 1971)
ii
Page.
RULES
28 U.S.C. § 1254(1)
28 U.S.C. § 1292(b)
Federal Appellate Rules,
Rule 5
Fiorida Rule of Criminal
Procedure 3.190(i), 1972.
iii
Page
3,10
Ww
7 >
——
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= . ive. ner ] q
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1975
~ No.
LOUIE L. WAINWRIGHT, Secretary,
Department of Offender Rehabi-
litation, State of Florida,
Petitioner,
vs. |
JOHN SYKES, #003316,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
OPINIONS BELOW
The opinion of the United States Court .
of Appeals, Fifth Circuit, not yet repor-
ted, appears in the appendix hereto as
"A. 1-18." The opinion of the District
Court, Middle District of Florida, Tampa
Division, as "A. 19-27."
JURISDICTION
The Court of Appeals, Fifth Circuit,
entered its judgment on February 25, 1976.
It denied a timely Petition for Rehearing
en bane on March 22, 1976, (A. 31) ent
this Petition for Certiorari was filed |
within 90 days of this date. This Court's-
jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
QUESTIONS PRESENTED
1. Whether the failure to question the
admissibility of an out-of-court statement,
at or before trial, bars a state prisoner
from presenting his voluntariness claim in
a federal habeas proceeding where such
- failure constitutes a waiver under state
practice.
2. Whether Jackson v. Denno, 378 U.S.
368 (1964), mandates a voluntariness hear-
ing where the admissibility of the confes-
sion or admission is not challenged.
aie
AUTHORITIES INVOLVED
Florida Rule of Criminal Procedure
3-190(i), 1972 (A. 30).
STATEMENT OF THE CASE
Florida charged John Sykes with murder
in the second degree. The jury found him
guilty of third degree murder. At trial,
certain eut~ol-emert statements made by
him were introduced in evidence. His
counsel never challenged the admissibility
of the statements, either at or before
trial. This constituted a waiver under
Florida Rule of Criminal Procedure 3.190
(i), 1972 (A. 30). Blatch v. State, 216
So.2d 261 (Fla.App. 1968), Thomas v. State,
249 So.2d 510 (Fla.App. 1971). Sykes never
raised the admissibility of the statements
on his appeal in state court.
1. After filing his habeas petition, Sykes
executed a written waiver waiving any con-
tentions that his state trial or appel-
late counsel was incompetent (A. 28-29).
oSe
Subsequently, John Sykes filed a
Petition for Writ of Habeas Corpus in the
District Court challenging the voluntari-
ness of his statements. Sykes contended
he had been too intoxicated to understand
his "Miranda Rights". The District Court
held an evidentiary hearing, but Sykes a
declined to present any testimony, velyten
entirely on the state trial record.
Florida contended that Sykes had waived the
right to present this issue because of his
counsel's failure to challenge the admis-
sibility of the statements.
The District Court ruled Sykes was
not bound by his counsel's procedural de-
fault and entered an interlocutory order
giving Florida 90 days within which to
conduct a Jackson v. Denno, 378 U.S. 368
(1964), voluntariness hearing (A. 25-26).
Florida sought permission and was granted
alien
leave to file an interlocutory appeal
pursuant to 28 U.S.C. §1292(b) and Rule
5 of the Federal Appellate Rules. The
Fifth Circuit affirmed, holding that
Sykes' procedural default did not con-
stitute a waiver even though Florida's
procedural subé deewed a "presumably"
legitimate state interest and even though
Sykes never alleged or presented evidence
of any cause excusing the failure to
object.
REASONS FOR GRANTING WRIT
1. THE DECISION BELOW RAISES SIGNIFI-
CANT AND RECURRING FEDERAL QUESTIONS IN-
VOLVED IN THOUSANDS OF HABEAS CORPUS PETI-
TIONS FILED BY STATE PRISONERS.
This Court and other circuits have
recognized that there is a legitimate in-
terest in the promulgation of procedural
rules to insure the timely presentation of
issues. Davis v. United States, 411 U.S.
oSe
233 (1973), Henry v. Mississippi, 379 U.S.
443 (1965), United States ex rel Allum v.
Twomey, 484 F.2d 740 (7th Cir. 1973).
The lower Court recognized that Flori-
da's procedural rule serves a legitimate
State interest. It refused, nevertheless,
to give effect to the rule. In short, it
destroyed the rule. The decision below is
erroneous and presents an important ques-
tion of Federal Constitutivnal law. It is
important that this Court clarify once and
for all whether only federal prisoners are
bound by procedural rules or whether the
respective states are also entitled to in-
sist on the enforcement of their procedural
rules.
The issues are recurring. Since Fay v.
Nota, 372 U.S. 391 (1963), it has remained
unclear to what extent and under what cir-
cumstances the failure to utilize available
state procedures will preclude subsequent
oq
collateral attack.
The decision of the Fifth Circuit in
the instant case muddles the water even
more.
2. THE DECISION CONFLICTS WITH THE
DECISION OF THIS COURT AND OF OTHER COURTS
OF APPEAL ON WHETHER A TIMELY OBJECTION AS
REQUIRED BY A STATE PROCEDURAL RULE MAY
CONSTITUTE A WAIVER OF A CONSTITUTIONAL
CLAIM.
As long as a procedural rule serves a
legitimate interest, failure to timely
raise a constitutional issue, as required
by the rule, constitutes a waiver and pre-
cludes consideration of the issue in col-
lateral proceedings, except where cause
excusing the waiver is shown. Henry v.
Missiesippi, 379 U.S. 443 (1965), Davie v.
United States, 411 U.S. 233 (1973).
The lower Court refused to recognize
this principle and held that even where a
oFe
ee ee
state criminal defendant does not chal-
lenge the admissibility of a statement, as
required by a state procedural rule, he is
not precluded from thereafter collaterally
challenging its admissibility in a federal
habeas proceeding.
The holding is in direct conflict with
that of the Seventh Circuit in United
States ex rel Allum v. Twomey, 484 F.2d
740 (7th Cir. 1973). There, in a habeas
proceeding filed by a state prisoner, the
Court applied a Davis, supra, procedural
waiver to the admissibility of an in cus-
tody statement.
A similar holding by the Ninth Circuit
appears in Curry v. Wilson, 405 F.2d 110
(9th Cir. 1969). In that case a habeas
petitioner contended that certain state-
ments made by him were improperly allowed
in evidence because he was intoxicated
when he made them. The Court held that
-8-
trial counsel's failure to object con-
stituted a waiver of the issue.
3. THE DECISION CONFLICTS WITH THE
DECISIONS OF THIS COURT ON WHETHER Jackson
v. Denno, 378 U.S. 368 (1964), MANDATES A
VOLUNTARINESS HEARING WHERE THE VOLUNTARI-
NESS OF THE CONFESSION OR ADMISSION IS NOT
CHALLENGED .
In order to justify its erroneous hold-
ing that Sykes was not bound by Florida's
2 the lower Court compound-
procedural rule
ed the error by holding that Jackson v.
Denno, supra, mandates a voluntariness
hearing even where a confession or admis-
sion is not challenged.
Jackson, v. Denno, supra, does not so
mandate. The precepts of Jackson are
satisfied as long as a forum is provided
2. While at the same time holding that it
". . . presumably .. . serve[s] a legi-
timate state interest." oe Bape
=Go
whereby a defendant challenging the volun-
tariness of a confession can have the
issue resolved by the Court as a matter of
law. Florida provides such a forum through
Criminal Procedure Rule 3.190(i) 1972
(A. 30).
That Jackson does not so mandate is
clear, not only from the opinion itself,
but from subsequent decisions of this
Court such as Lego v. Twomey, 404 U.S. 477
(1972), where in referring to Jackson
this Court said:
"in 1964 this Court held
that a criminal defendant
who challenges the volun-
tariness of a confession
made to officials and
sought to be used against
him at his trial has a
due poveese right to a re-
liable determination that
the confession was in fact
voluntarily given and not
the outcome of coercion
which the Constitution
forbids.
[Text at 478, emphasis supplied]
siBe
and Pinto v. Pierce, 389 U.S. 31 (1967),
where this Court also said:
in . a defendant's consti-
eucional rights are violated
when his challenged confee-
sion is introduced without a
determination by the trial
judge of its voluntariness
after an adequate hearing
[Text at 32, emphasis supplied]
In support of its decision, the lower
court relies on Sime v. Georgia, 385 U.S.
538 (1967). But there the confession was
specifically challenged and the issue was
whether the Georgia courts afforded a fair
and reliable procedure for determining its
voluntariness - not one of a sua sponte
obligation on the part of the trail court
to determine voluntariness.
CONCLUSION
For these reasons, Petitioner respect-
fully urges this Court to grant Certiorari
and reverse the holding of the Court of
efile
Appeals in and for the Fifth Circuit.
Respectfully submitted,
ROBERT L. SHEVIN
ATTORNEY GENERAL
CHARLES CORCES, JR.
Assistant Attorney General
419 Stovall's Professional Bldg.
305 North Morgan Street
Tampa, Florida 33602
Counsel for Petitioner
-12-
CERTIFICATE OF SERVICE
I, CHARLES CORCES, JR., Counsel for
Petitioner, and a member of the Bar of
the United States, hereby certify that on
the 7) day of April, 1976, I served
three copies of the Petition for Writ of
Certiorari on William F. Casler, Esquire,
Counsel tor Respondent, 6795 Gulf Boule-
vard, St. Petersburg, Florida 33706, by
a duly addressed envelope with postage
prepaid.
Assistant Attorney General
site
Dw. ew
WAINWRIGHT v. SYKES 2202
Louie L. WAINWRIGHT, Director,
Division of Corrections,
Petitioner-Appellant,
v.
John SYKES, Respondent-Appellee.
No. 75-1781.
United States Court of Appeals,
Fifth Circuit.
Feb. 25, 1976.
State appealed from an interlocuto-
ry order of the United States District
Court for the Middle District of Florida,
at Tampa, Wm. Terrell Hodges, J., ina
habeas corpus case requiring it to con-
duct an evidentiary hearing to supple-
ment the record and providing, in the
alternative, that the Court would deter-
mine the issues on the state record as
transmitted, if a supplemental evidentia-
ry hearing were not held. The Court of
Appeals, Simpson, Circuit Judge, held
that if the trial judge had questioned the
admissibility of statements made by de-
fendant at the time of his arrest and had
required the prosecution to show they
were admissible, the defendant, who
failed to object at or before trial to the
introduction of the statements, would
have been on notice as to the waiver of
his rights, and pertinent Florida rule
might now foreclose him, on petition for
A-1
federal habeas relief, from bringing ad-
ditional or subsequent arguments re-
garding the admissibility of the state-
ments; but since the judge did not as-
sure himself of the admissibility of the
statements, the rule would not be con-
strued as foreclosing defendant's oppor-
tunity to challenge their voluntariness
and the concomitant waiver of his Mi-
randa rights.
Affirmed.
1. Criminal Law 412.2(5)
Any incriminating statement made
by the defendant absent a knowing and
intelligent waiver of his right to counsel
and his right not to incriminate himself
must be excluded from the evidence at
trial. 33 West's F.S.A. Rules of Criminal
Procedure, rule 3.190(i).
2. Criminal Law 412.2(5)
A defendant might be too drunk to
give a knowing and intelligent waiver of
his right to counsel and his right not to
incriminate himself and, in such a case,
out-of-court statements made by him
would be inadmissible at trial as evi-
dence against him. 33 West's F.S.A.
Rules of Criminal Procedure, rule
3.190¢i).
3. Criminal Law 414
Before an admission or confession
may be introduced in evidence against a
defendant, it is incumbent on the trial
judge to determine the voluntariness of
the statements involved, and the defend-
A-2
ant's knowing and intelligent waiver of
his constitutional rights. 33 West's
F.S.A. Rules of Criminal Procedure, rule
3.190(i).
4. Constitutional Law 266.1(5)
As a matter of procedural due proc-
ess, a defendant is entitied to a hearing
on the issue of the voluntariness of an
admission or confession made by him.
5. Criminal Law 1144.12
Waiver of Miranda rights will not
be presumed from a silent record.
6. Criminal Law 671
Burden is on the state to secure a
hearing outside the presence of the jury,
not on the defendant to demand it, to
determine the voiuntariness of any state-
ments made by the defendant and pro-
posed to be used as evidence against
him. 33 West's F.S.A. Rules of Criminal
Procedure, rule 3.190(i).
7. Habeas Corpus 25.1(8)
If trial judge had questioned the ad-
missibility of statements made by de-
fendant at time of his arrest and had
required the prosecution to show they
were admissible, the defendant, who
failed to object at or before trial to the
introduction of the statements, would
have been on notice as to the waiver of
his rights, and pertinent Florida rule
might foreclose him, on petition for fed-
eral habeas relief, from bringing addi-
tional or subsequent arguments regard-
A-3
ing the admissibility of the statements;
but since the judge did not assure him-
self of the admissibility of the state-
ments, the rule would not be construed
as foreclosing defendant's opportunity to
challenge their voluntariness and the
concomitant waiver of his Miranda
rights. 33 West's F.S.A. Rules of Crimi-
nal Procedure, rule 3.190(i).
Appeal from the United States Dis-
trict Court for the Middle District of
Florida.
Before GEWIN, BELL* and SIMPSON,
Circuit Judges.
SIMPSON, Circuit Judge:
The respondent below, Wainwright,
(appellant, or occasionally, "the State"),
appeals from an interlocutory order of
the district court in a state habeas cor-
pus case. That order required the state
to conduct an evidentiary hearing to sup-
plement the record before the district
court, and provided that in the alterna-
tive, if such a hearing is not held, the
district court will determine the issues
on the state record as transmitted. The
effect of the order was stayed for 90
days to permit this appeal. At issue is
the petitioner-appellee's contention that
statements made by him at the time of
his state arrest were unconstitutionally
* Judge Bell participated fully in the de-
cision of this case and concurred in this
opinion prior to the effective date of
his resignation, March 1, 1976.
A-4
used as evidence against him at trial,
because,,conceding that he received his
Miranda ~ warnings as testified by sher-
iff's deputies, he was drunk at the time
of his arrest and the ma®ing of the
statements used, and thus incapable of a
knowing waiver of the underlying consti-
tutional rights involved. The respondent
counters that appellee Sykes' failure to
object to the introduction in-evidence of
the out of court statements at or before
trial, required by Rule 3.190(i), Fla.R.
Crim.Proc. 1972 “, waived his opportunity
to challenge the voluntariness of the in-
criminating statements.
1. Miranda v. Arizona, 1966, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
2. (i) Motion to Suppress a Confesston or
Admissions Illegally Obtained.
(1) Grounds. Upon motion of the de-
fendant or upon its own motion, the court
shall suppress any confession or admis-
sion obtained illegally from the defen-
dant.
(2) Time for Filing. The motion to
suppress shall be made prior to trial
unless opportunity therefor did not
exist or the defendant was not aware of
the grounds for the motion, but the
court in its discretion may entertain
the motion or an appropriate c»bjection
at trial.
(3) Hearing. The court shall receive
evidence on any issue of fact necessary
to be decided in order to rule on the
motion.
A-5
Appellee was arrested and charged
with second degree murder. On June 5,
1972, he was tried before a jury, and
convicted of third degree murder, Fla.
Stat. 782.04, in a Florida court. The
conviction was affirmed on direct =
Subsequently, he unsuccessfully sought
habeas corpus relief in the state courts.
Thereafter he sought habeas corpus relief
in the court below. In an unpublished
order of January 23, 1975, the district
court found that appellee's trial tran-
script and the state record was too a
a basis for findings as to the voluntari-
ness of the waiver of the Miranda rights
involved. Consequently,,the court ordered
that a Jackson v. Denno 3 type evidentiary
hearing be held in the Florida court to
determine the voluntariness of the out of
court statements used as evidence against
Sykes. The court later modified its order
to permit an nneg seaurery appeal pursuant
to Title 28, U.S.C. § 129 cb). and we
accepted the appeal.
At issue then are two distinct waiver
problems: (1) did Sykes knowingly and
voluntarily waive his Miranda rights when
he made inculpatory statements at the time
of his arrest (2) did appellee, by fail-
ing to object to the introduction of the
statements into evidence, ar nrovided by
henge State law, waive ve right to
ring this objection on appeal or in sub-
sequent proceedings? The purpose of the
evidentiary hearing the district court
ordered is to determine the factual basis
of the underlying waiver issue, or sub-
3. 1964, 378 U.S. 368, 84 S.Ct. 1774,
12 L.Ed.2d 908.
A-6
stantive issue, to determine if Sykes was
in fact so drunk he could not understand
his Miranda rights, apd thus could not
ne waive them, Our inquiry, in
determ — the propriety of the district
court's order, must focus on the second,
or procedural, waiver.
I. NATURE OF THE RIGHT
[1,2] Both appellee and the state rec-
ognize that any incriminating statement
made by a defendant absent a knowing
and intelligent waiver by him of his
right to counsel and his right not to in-
criminate himself must be excluded from
the evidence at trial. Miranda v. Ariso-
na, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16
4. The trial transcript shows affirmatively
that Sykes was advised of his rights at
the jailhouse. The conversation in which
Sykes made incriminating statements took |
place, however, at the scene of the shoot-
ing, shortly after the police had arrived.
The record is not clear as to whether
Sykes was informed of his Miranda rights
before these initial statements were giv-
en. These initial inculpatory state-
ments made by Sykes, while in the custody
of the police, were inconsistent with
Sykes' self defense theory at trial. The
prosecution called sheriff's deputies
who testified to Sykes' statements dur-
ing the case in chief. The testimony of
three separate witnesses indicates Sykes
had been drinking at the time he made
those statements, and raises the possi-
bility that even if Sykes had been read
his rights, he might not have been able
to comprehend them, and might therefore
have been unable to knowingly waive them.
A-7
L.Ed,2d 694, The state does not appear
to object to the proposition, in the ab-
stract, that a defendant might be too
drunk to give such a knowing and intelli-
gent waiver, and that, in such a case, out
of court statements made by him would
be inadmissible at trial as evidence
against him. .
The Supreme Court in Miranda, in rec-
ognition of the importance of the de-
fendant's Fifth and Sixth Amendment
phe, ae stated that "(t]he warnings re-
quired and the waiver necessary in ac-
cordance with our “ge today are, in
the absence of a fully effective equiva-
lent, prerequisite to the admissibility of
any statement made by a defendant".
384 U.S. at 476, 86 S.Ct. at 1629, 16
L.Ed.2d at 725. The state asserts that
the protections and prerequisites Miran-
da set out as necessary to the introduc-
tion of a defendant's out of court state-
ments might themselves be waived by
the failure of the defendant to object to
their introduction.
[3-6] Before an admission or confes-
sion may be introduced into evidence
against a defendant, it is incumbent
upon the trial judge to determine the
voluntariness of the statements involved,
and the defendant's knowing and intelli-
5. Cf. United States v. Taylor, 5 Cir.
1975, 508 F.2d 761, 763: "The evidence
must show the defendant was so affected
as to make the statement, after appro-
priate | pein of unreliable or involun-
tary". [regarding the admissibility
of statements made by a defendant while
under the influence of drugs].
A-8
gent waiver of his constitutional rights.
Johnson v, Zerbst, 1938, 304 U.S. 458, 88
S.Ct. 1019, 82 L.Ed. 1461. A defendant is
entitled to a hearing on the issue of vol-
untariness as a matter of procedural due
process. Jackson v. Denno, supra. The rule
set out in Jackson v, Denno is that “a jury
is not to hear a confession unless and un-
til the trial judge has determined that it
was | and voluntarily given." Sime v.
Georgta, 1967, 385 U.S. 538, 543-544, 87
S.Ct. 639, 643, 17 L.Ed.2d 593, 598, "Al-
though the judge need not make formal find-
ings of fact or write an opinion, his con-
clusion that the confession is voluntary
must appear from the record with unmiés-
takable clarity". TJd., 385 U.S. at_544,
87 S.Ct. at 643, 17 L.Ed.2d at 598.6 Long
before Jackson v. Denno the Florida prac-
tice was to require the trial judge to
hold a hearing outside the presence of the
jury to determine the voluntariness of any
statements by the defendant +n oe to be
used as evidence against him. e bur-
6. The waiver of Miranda rights will not
be presumed from a silent record. Miranda
v. Arizona, 384 U.S. at 475, 86 S.Ct. at
1628, 16 L.Ed.2d at 724, citing Carnley v.
Cochran, 1962, 369 U.S. 506, 82 S.Ct. B84.
8 L.Ed.2d 70.
7. "While we think it is best for counsel
to interpose objections to the introduc-
tion of evidence of admissions or con-
fessions, in order that the court may make
the preliminary investigation to deter-
mine its admissibility, that does not
relieve the trial judge of the duty
when evidence of this character is
sought to be introduced to satisfy
himself that the admissions were freely
and voluntarily made berore admitting
A-9
den is on the state to secure this prima
facie determination of volunteriness, not
upon the defendant to demand it. MeDole
v. State, Fla. 1973, 283 So.2d 553;
Reddish v. State, Fla.1964, 167 So.2d 858;
Young v. State, Fla.1962, 140 So.2d 97;
Smith v. State, 3rd Fla.D.C.A.1974, 288
So.2d 522; Dodd v. State, 4th Fla.D.C.A.
1970, 232 So.2d 235.
II. WAIVER
Appellee argues that not only did the
state fail to carry its burden in showing
affirmatively, on the record, that the
statements introduced were voluntarily
made, but that the waiver principles
enunciated in Fay v. Noia® make it
plain that constitutional rights of such
them. It is a duty which the law im-
poses upon the court in order that the
aban Hh constitutional right to a
air and impartial trial ~ be protected
and preserved, and this right should not
be made to depend on the skill and alert-
ness of counsel, otherwise courts, in-
stead of being the forum in which jus-
tice alone is the object to be attained,
would become games played by the respec-
tive counsel and won or lost ——- to
their skill in playing the game according
to the rules." Stiner v. State, 1919,
78 Fla. 647, 83 So. 565.
8. "We therefore hold that the federal
habeas judge may in his discretion deny
relief to an applicant who has deliber-
ately bypassed the orderly procedure of
the state courts and in so doing has
forfeited his state court remedies.
A-10
fundamental importance as those con-
sidered here may only be waived by the
defendant himself. deliberately, and not
by his attorney without his personal
knowledge, or through a procedural for-
feit. The state, however, recites to us a
"But we wish to make very clear that
this grant of discretion is not to be
interpreted as a permission to introduce
legal fictions into federal habeas corp-
us. The classic definition of waiver
enunciated in Johnson v. Zerbet — ‘an
intentional relinquishment or abandon-
ment of a known right or privilege’ —
furnishes the controlling standard. If
a habeas applicant, after consultation
w'th competent counsel or otherwise,
understandingly and knowingly forewent
the privilege of oy to vindicate
his federal claims in the state courts,
whether for strategic, tactical, or any
other reasons that can fairly be describ-
ed as the deliberate bypassing of state
procedures, then it is open to the fed-
eral court on habeas to deny him all re-
lief if the state courts refused to en-
tertain his federal claims on the merits
—though of course only after the feder-
al court has satisfied itself, by holding
a hearing or by some other means, of the
facts bearing upon the applicant's de-
fault. At all events we wish it clearly
understood that the standard here put
forth depends on the considered choice of
the petitioner. A choice made by counsel
not participated in by the petitioner
does not automatically bar relief. Nor
does a state court's finding of waiver
bar independent determination of the
A-11
litany of cases pecpessane to show that
in instances such as this a purely proce-
dural waiver would bind the defendant,
notwithstanding the fact that he had no
personal knowledge of the rights waived.
The state sees this as a case control-
led by Henry v. tag + iy, ~, 1965, 379
U.S. 443, 85 S.Ct. 564, 5 L.Ed.2d 408,
which held that it is up to the federal
courts to determine whether the enforce-
ment of a state procedural rule serves a
legitimate interest so as to preclude a
state prisoner from — questions of
constitutional right by federal habeas
corpus. Florjda ule of Criminal Proce-
dure 3.190(i1)”* is a contemporaneous ob-
jection rule analogous to that considered
in Henry. Their function is the same; "By
immediately apprising the trial judge of
the objection, counsel gives the court the
opportunity to conduct the trial without
using the tainted evidence."' Henry v. Mis-
eitesippi, supra, 408 U.S. at 448, 85 S.Ct.
at 567, 13 L.Ed.2d at 413. The facts of
this case, however, are not such as to re-
quire that federal courts, from any prin-
ciple of comity, refrain from determining
— underlying constitutional claim of
Sykes.
qeenses by federal courts on habeas,
or waiver affecting federal rights is
a federal question. (citations omitted
throughout). Fay v. Nota, 1963,
372 U.S. 391, 438-439, 83 S.Ct. 822,
849, 9 L.Ed.2d 837, 869.
9. See Note 2, supra.
A-12
Henry dealt with the admissibility of
& police officer's testimony as to evi-
¢ence which had been illegally obtained.
Counsel for the defendant in that case
did not object at trial to the testimony,
and therefore did not comply with the
state's contemporaneous objection rule.
The Court remanded the case to the state
court to determine whether the defendant
was "to be deemed to have knowingly waived
decision of his federal claim when timely
objection was not made to the admission of
illegally seized evidence." I[d., 408 U.S.
at 446, 85 S.Ct. at 566, 13 L.Ed.2d at 412.
The Supreme Court stated that there was no
question but "that a litigant's procedural
defaults in state proceedings do not pre-
vent vindication of his federal rights un-
less the State's insistence on compliance
with its procedural rule serves a legiti-
mate state interest."' Id., 408 U.S. at
448, 85 S.Ct. at 567, 13 L.Ed.2d at 413.
As already noted, the contemporaneous ob-
jection rule considered in Henry, and pre-
sumably the one at bar, serve a legitimate
state interest. The Supreme Court did not
find a waiver in Henry, but remanded the
case to the state courts, because the
Court thought a motion for a directed
verdict, made at the close of the State's
evidence might have vindicated the state's
interest in having the rule followed by
alerting the trial judge to the objections
of the defendant, and therefore the rule
might have been reduced to mere form.
The court felt this determination, and
other evidentiary questions relating to
whether or not error in admitting the
evidence was subsequently cured, or
whether the defense had engaged in a
A-13
deliberate by-pass of the Mississippi
rule, would be more properly decided in
the state courts. As to this later pos-
sibility, the Court opined that a delib-
erate by-pass of the Mississippi proced-
ural rule would constitute a waiver
binding on the defendant.
: In Davis v. United States, 1973, 411
U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216,
the Supreme Court held the failure of a
federal defendant to assert, before trial,
a claim of unconstitutional racial dis-
crimination in the composition of the
grand jury which had indicted him, as
provided for by Rule 12(b)(2) of the Fed-
eral Rules of Criminal Procedure, consti-
tuted a waiver of his rights. The waiver
foreclosed habeas corpus consideration of
the issues raised. A major tenet of the
Davis decision was that no prejudice was
shown to petitioner through the loss, or
waiver, of hig rights to challenge jury
composition. In Newman v. Henderson,
5 Cir. 1974, 496 F.2d 896, we held, ina
habeas corpus action brought by a state
prisoner to challenge the racial composi-
tion of the grand jury which had indicted
him, that absent a showing of actual pre-
judice, the principles of Davis would
10. Rule 12(b)(2), F.R.Crim.P., provides
for the waiver of claims to defects in
the institution of criminal proceedings
if not asserted before trial. The de-
fendant may be relieved of this waiver
"for cause shown". In Shotwell Mfg. Co.
v. United States, 1963, 371 U.S. 341,
83 S.Ct. 448, 9 L.Ed.2d 357, and in
Davis, supra, the Court indicated actual
prejudice would be a factor in "cause
shown".
A-14
bind the petitioner to a waiver predicated
upon state procedural requirements. How-
ever in a case such as the present one,
involving the admissibility of a con-
fession or incriminating statement, pre-
judice to the defendant is inherent.
The state pursues its claim of waiver
by citing Winters v. Cook, 5 Cir. 1973,
489 F.2d 174 (En Banc). In that case we
held that the defendant had waived his
right, by his guilty plea to a murder
charge, to subsequently challenge by
writ of habeas corpus the racial composi-
tion of the grand jury that had indicted
him. The record of that case indicated
Winter's attorney fully considered the
possibility of raising constitutional ob-
jections on behalf of his client, but re-
jected this option for tactical reasons in
favor of a plea of guilty (which the state
was induced to accept by the "pry-bar"
effect of the threat of the possible con-
stitutional objection) which avoided the
possibility of a death sentence. The
court held that despite the fact the de-
fendant had not been consulted with on the
waiver- of the grand jury issue, he was
bound by that waiver. The court held how-
ever, as had the Supreme Court in Henry v.
Mississippi, that some “exceptional” cir-
cumstances would preclude the waiver by
counsel of certain rights without the de-
fendant's knowledge. We are confident
that Miranda rights, in a situation such
as this, might constitute such "exception-
al" circumstances, see Developments in
the Law—Federal Habeas Corpus, 83
Harv.L.Rev. 1038, 1111 n. 102 (1970), but
refrain from basing our holding on this
rationale alone.
A-15
In a case somewhat similar, factually,
to this one, the Seventh Circuit in Unit-
ed States ex rel, Allum v. Twomey, 7
Cir. 1970, 484 F.2d 740, considered the
juxtaposition of Fay v. Nota and Davis
v. United States in relation to a state
prisoner's assertion that he did not
‘knowingly and deliberately" waive his
rights to object to the admissibility of
an in custody statement made by him. The
court found that the state defendant
should be held to a waiver by his failure
to object even though it was not a per-
sonal waiver, but one attributable to his
attorney. In evaluating the facts it
found persuasive in reaching this conclu-
sion, the court found "there was a rea-
sonable tactical basis for counsel's fail-
ure to object to the statement." I[d., at
745.
The failure to object in this case can-
not be dismissed as a trial tactic, and
thus a deliberate by-pass. Aside from
the state's bare allegation that such was
the case, without the suggestion of the
slighted tactical benefit, there is noth-
ing here present upon which to speculate
that the defense's failure to object to
the introduction of Sykes' statement was a
strategic decision. We can find no possi-
ble advantage which the defense might
have gained, or thought they might gain,
from the failure to conform with Florida
Criminal Procedure Rule 3.190(i).
III. CONCLUSION
The burden is on the state to introduce
a proper predicate for the admission of a
confession or statement against interest
A-16
into evidence. The trial judge, before
receiving the admissions or confessions
of a defendant must hold an evidentiary
hearing outside the presence of the jury
to determine if it was voluntarily made.
Jackson v. Denno, supra. This is a pre-
requisite to the introduction of the evi-
dence; and the opportunity to have such
a hearing is a pre-requisite to any asser-
tion of waiver because of the defend-
ant's failure to object.
[7] The state's interest then, if not
to be reduced to mere form, in having Flo-
rida Criminal Procedure Rule 3.190(i) fol-
lowed, must be co-extensive with the es-
tablished burden on the state. If the
trial judge had questioned the admissibil-
ity of the statements, required the prose-
cution to show they were admissible, ap-
pellee would have been on notice as to |
the waiver of his rights, and Rule
3.190(i) might now foreclose him from
bringing additional or subsequent argu-
ments regarding the admissibility of the
statement in question. Because the trial
afforded appellee in this case did not
conform to procedural requirements,
long established, that the trial judge
must assure himself of the admissibility
of the criminal defendant's statements,
we refuse to construe Rule 3.190(i) as
foreclosing Sykes' opportunity to chal-
lenge the voluntariness of the state-
ments admitted, and the concomitant
waiver of Miranda rights.
The actual prejudice to appellee stem-
ming from enforcing a waiver of Miran-
da rights, as well as the total absence of
any indication that his failure to object
A-17
is attributable to trial tactics, persuade
us that the district court should be af-
firmed. Justice requires it.
The state will have ninety days from
the time our mandate issues to conduct an
evidentiary hearing to determine whether
Sykes was properly apprised of his Miranda
rights, and understood and knowingly
waived those rights at the time he made
the incriminating statements used against
him. If the state does not initiate a
hearing before the expiration of that
time, the district court may determine the
issues on the record as transmitted.
The order appealed from is in all
respects
Affirmed.
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN SYKES,
Petitioner,
vs.
LOUIE L. WAINWRIGHT,
Director, Division of
Corrections, State of
Florida,
Respondent.
Nae a a a ee Ne eS 8 ee”
ORDER
On April 25, 1973, Petitioner, a
state prisoner, filed with the Clerk his
pro se petition for habeas corpus relief
pursuant to 28 U.S.C. §2254. Im accor-
dance with a General Order of Assignment,
the petition was referred to the United
States Magistrate for his Report and
Recommendation. The Magistrate, on June
26, 1973, authorized the commencement of
the action without prepayment of costs
or fees; and, on August 14, 1973, he
appointed counsel for Petitioner pursuant
to the Criminal Justice Act of 1964, 18
U.S.C. § 3006A. Issue was then joined,
and counsel presented briefs concerning
the legal and factual issues involved.
Thereafter, on August 23, 1974, the
A-19
No. 73-316-Civ.T.H.
Magistrate entered his Report and
Recommendation, recommending that an
evidentiary hearing be conducted. See,
Wingo v. Wedding, U.S. , 94 $.Ct.
LY) (1974).
Accordingly, the Court ordered the
filing of a pre-evidentiary hearing sti-
pulation, ordered the production of Peti-
tioner in Tampa, and scheduled a pre-
evidentiary hearing and evidentiary hear-
ing. Pursuant to stipulation of counsel,
the pre-evidentiary hearing was cancelled
and the cause came on for evidentiary
hearing on January 9, 1975.
While the file in this cause is
sketchy at best, counsel for Petitioner
summarized the undisputed facts of the
case at the January 9 hearing:
In 1972, Petitioner was charged with
second degree murder in the Twelfth Judi-
cial Circuit Court, DeSoto County,
Florida. Following a jury trial, Peti-
tioner was convicted of third degree mur-
der and was sentenced to a term of
ten years incarceration. An appeal
ensued, and his conviction was affirmed
by the Second District Court of Appeal.
Certiorari was denied by the Florida
Supreme Court. In addition, a motion to
vacate, set aside or correct sentence
addressed to the trial court pursuant to
Rule 3.850, Fla. R.Crim.P., was denied,
as were petitions for writ of habeas cor-
pus filed in the Second District Court of
Appeal and the Florida Supreme Court.
Petitioner now presents two claims to
this Court. First, Petitioner asserts
A-20
that certain statements made by him to
sheriff's deputies were improperly admit-
ted at trial since Petitioner was intox-
icated at the time he made them and,
therefore, was incapable of understand-
ing the Miranda warnings which were
supposedly given. Second, Petitioner
asserts that improper instructions were
given to the trial jury. With respect to
these claims, counsel for Petitioner
stated at the January 9 hearing that
Petitioner would stand on the trial
tr .script made in state court and the
official documents and papers in the
court file. He called no witnesses.
Likewise, Respondent presented no
additional testimony or evidence.
I. MIRANDA CLAIM
Dealing first with the Miranda claim,
it is undisputed that counsel for Peti-
tioner made no motion to suppress the
statements prior to the trial in state
court, made no objection to the intro-
duction of them at trial, and did not
assign as error on appeal the fact that
the statements had been received in
evidence. However, Petitioner did
present his argument to the state
courts in his post-conviction motions
and petitions, and the Court finds that
Petitioner has exhausted his state reme-
dies as to this claim as required by 28
U.S.C. § 2254(b).
Respondent argues that Petitioner's
failure to raise this issue in the state
courts by motion to suppress, objection,
or appeal constitutes waiver of his clain,
A-21
and he should not be heard to raise it
in this Court. The waiver issue has been
the subject of much discussion in the
authorities, and the law is now fairly
settled. In exceptional circumstances,
some strategic decisions at trial can
preclude an accused from later asserting
a constitutional claim on federal habeas
corpus. Henry v. Mississippi, 379 U.S.
443, 451- , 85 S.Ct. 564, 569 (1965);
Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct.
, 849 (1963); Winters v. Cook, 489 F.2d
174, 176-180 (5th Cir. 1973). Other than
the bald assertion, however, Respondent
has pointed to nothing in the record and
has adduced no evidence here that would
demonstrate the kind of exceptional
circumstance recognized in the authori-
ties as constituting a waiver. Clearly,
therefore, it would be error for the
Ceurt to give effect to Respondent's
contention on this record. See, e.g.,
Collier v. Estelle, F.2d t
Cir. 1975) [slip op. P. 2312, No. 74-2474,
Jan. 9, 1975]; Bailey v. Alabama, F.2d
(5th Cir. 1975) fslip op. p. 2159,
No. 74-2104, Jan 6, 1975].
Turning to the merits of Petitioner's
claim that he was intoxicated and incap-
able of understanding the Miranda warn-
ings given him, the authorities are clear
that Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602 (1966), requires that certain
warnings or cautions be given to a suspect
in a custodial situation and that the
suspect fully understand the substance of
his constitutional rights as explained in
those warnings.
A-22
Thus, it is said in the fountainhead
case itself:
"If the interrogation con-
tinues without the presence
of an attorney and a statement
is taken, a heavy burden rests
on the government to demonstrate
that the defendant knowingly
and intelligently waived his
privilege against self-incrimi-
nation and his right to re-
tained or appointed counsel
. . This Court has always
set high standards of proof
for the waiver of constitution-
al rights,. . ., and we re-
assert these standards as applied
to in-custody interrogation.
Since the State is responsible
for establishing the isolated
circumstances under which the
interrogation takes place and
has the only means of making
available corroborated evidence
of warnings given during in-
communicado interrogation,
the burden is rightly on its
shoulders."
Miranda v. Arizona, supra, at 475, 86
S.Ct. at 1628 [citations omitted].
Consequently, the issue presently
before the Court, as it is in all
habeas cases presenting the Miranda
issue, is: has the prosecution sustained
its "heavy burden" of demonstrating that
the defendant was effectively advised of
his rights, and did he knowingly and under-
A-23
standingly decline to exercise tlem? Hill
v. Whealon, 490 F.2d 629, 630 (6th Cir.
1974); Hughes v. Swenson, 452 F.2d 866,
868 (8th Cir. 1971). C£. Hamilton v.
Smith, 450 F.2d 922, 923 (5th Cir. 1971);
Goodwin v. Smith, 439 F.2d 1180, 1182
(5th Cir. 1971). As to that issue, the
only evidence before the Court is that
developed in the state trial itself,
neither party having presented any
testimony or evidence at the January 9
hearing.
The transcript of the proceedings and
testimony taken before the Hon. John D.
Justice, Circuit Judge, at Petitioner's
June 5, 1972 trial is markedly void of
the facts and information required by
this Court to make a determination of
the issue now before it.* The witness,
Neil Tyree, testified that he remembered
hearing someone advise Petitioner of his
“constitutional rights" at the scene of
the homicide, Transcript at 16 and 23, but
he further testified that he did not
remember who it was who gave Petitioner
his "rights," Transcript at 23. No
testimony at all was given by this wit-
mess concerning the substance of any
warnings given Petitioner or Petitioner's
* Under no circumstances should this ob-
servation be taken as a criticism of the
trial judge. He was given no opportunity
to pass on the matter. It should also be
observed that Petitioner has withdrawn
his claim of ineffective assistance of
counsel.
A-24
ability to understand any such warnings.
The witness did testify, however, that
Petitioner smelled of alcohol, Transcript
at 19 and 24. Another witness, Gus Gre-
than, a DeSoto County Deputy Sheriff,
testified that he and G. H. Skinner, also
a Deputy Sheriff, read Petitioner's rights
to him from a card later at the jail,
Transcript at 35, and that, at the time
the officers arrived at the scene of the
homicide, Petitioner was sufficiently
intoxicated to be arrested for being
drunk, Transcript at 39. Again, no testi-
mony at all was given by this witness, or
by any other, concerning the substance of
any warnings given Petitioner or Peti-
tioner's ability to understand any such
warnings. Thus, were it proper for this
Court to directly pass upon the suffi-
ciency of the evidence adduced at trial
to sustain the prosecution's "heavy bur-
den," the Court would be constrained
to hold that the evidence was not suffi-
cient. However, such a determination at
this point would be improper.
A review of the state court proceedings
at trial, on appeal, and on post-trial
collateral attack reveals that at no time
has Petitioner received a hearing on the
issue of the voluntariness of his state-
ments pursuant to Jackson v. Denno, 378
U.S. 368, 391, 84 S.Ct. 1774, 1778 (1964).
Jackson requires such a hearing; and, fur-
ther, it requires that the hearing be held
in the state courts, rather than in federal
court on habeas corpus. Jackson v. Denno,
supra, at 393, 84 S.Ct. at 1789-1790;
Sigler v. Parker, 396 U.S. 482, 484, 90
set 667, 669 (1970). Accordingly, this
A-25
Court will stay proceedings in this cause
for a period of 90 days from the date
hereof to allow the state courts a reason-
able opportunity to afford Petitioner a
hearing on the voluntariness issue. At
the expiration of that period of time, the
Court will continue to stay this proceed-
ing if a hearing is then pending in state
court. If one is not, the Court will then
be required to determine whether or not
the state carried its burden on the basis
of the record as it presently exists.
Before leaving Petitioner's Miranda
claim, two additional comments need to be
made. First, no distinction can be drawn
between the Jackson case, which deals with
confessions, and the subsequent Miranda
case, which deals with mere statements.
For Miranda makes it clear that "the priv-
ilege against self-incrimination protects
the individual from being compelled to
incriminate himself in any manner; it does
not distinguish degrees of incrimination."
384 U.S. at 476, 86 S.Ct. at 1629.
Second, the fact that 28 U.S.C. §
2254(d) places the burden upon Petitioner
in this proceeding to show by clear and
convincing evidence that the state court's
determination was erroneous, does not
assist Respondent in these circumstances.
By pointing to the transcript of the state
trial, Petitioner has succeeded in demon-
strating that the merits of the factual
dispute were not resolved in a state court
hearing and that the material facts were
not adequately developed there. Accord-
ingly, the burden has shifted to Respon-
dent. 28 U.S.C. §2254(d)(1) and (3).
A-26
II. IMPROPER JURY INSTRUCTIONS
Petitioner's second claim for habeas
corpus relief relates to allegedly improper
jury instructions given at Petitioner's
trial in state court. Specifically,
Petitioner attacks the instruction re-
lating to justifiable homicide. The Court
has reviewed the instructions given,
Transcript at 121, and the applicable state
law, § 782.02, Fla. Stat. The Court finds
that the instructions given at trial were
adequate, and, to the extent they differ in
small part from the statute, that differ-
ence does not constitute a claim rising
to constitutional proportions. Accord-
ingly, Petitioner's request for relief
with respect to this claim is hereby
DENIED.
IT IS SO ORDERED.
DONE and ORDERED at Tampa, Florida,
this 22nd day of January, 1975.
/S/ Wm. Terrell Hodges
JUDGE
A-27
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN SYKES, #003316,
Petitioner,
vs. No. 73-316Civ.T.H.
LOUIS L. WAINWRIGHT,
Director, Division of
Corrections, State of
Florida,
Respondent.
WAIVER
The Petitioner, JOHN SYKES, hereby
waives eny contention or allegation as
regards ineffective assistance of counsel
at trial in the Twelfth Judicial Circuit
of Florida or on appeal to the Second
District Court of Appeals of Florida,
pertaining to a Third Degree Murder
Conviction for which he is presently
confined in Union Correctional Insti-
tution at Raiford, Florida.
Dated this 20 day of November, 1973.
/S/ John Sykes
A-28
WITNESSES :
/S/ Calvin C. Campbell
/S/ John H. Henninger
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of
the foregoing Waiver was mailed to Charles
Corces, Jr., Assistant Attorney General,
419 Stovall Professional Building, 305
Morgan Street, Tampa, Florida, 33602.
11/28/73
/S/ William F. Casler
WILLIAM F. CASLER
Counsel for Petitioner
502 Florida National
Bank les
St. Petersburg, Florida
A-29
PRE-TRIAL MOTIONS RULE 3.190 (1972)
(i) Motion to Suppress a Confession or
Admissions Illegally Obtained.
(1) Grounds. Upon motion of the de-
fendant or upon its own motion, the court
shall suppress any confession or admission
obtained illegally from the defendant.
(2) Time for Filing. The motion to
suppress shall be made prior to trial un-
less opportunity therefor did not exist or
the defendant was not aware of the
grounds for the motion, but the court in
its discretion may entertain the motion or
an appropriate objection at the trial.
(3) Hearing. The court shall receive
evidence on any issue of fact necessary to
be decided in order to rule on the motion.
A-30
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
OFFICE OF THE CLERK
600 Camp Street
New Orleans, La. 70130
Telephone 504-489-5614
EDWARD W. WADSWORTH
Clerk
March 22, 1976
TO ALL COUNSEL OF RECORD
No. 75-1781 - Louie L. Wainwright,
Director, Division of
Corrections v. John Sykes
Dear Counsel:
This is to advise that an order has this
day been entered denying the petition( )
for rehearing, and the Court having been
polled at the request of one of the men-
bers of the Court and a majority of the
Circuit Judges who are in regular active
service not having voted in favor of it,
(Rule 35, Federal Rules of Appellate
Procedure; Local Fifth Circuit Rule 12)
the petition( ) for rehearing en banc
has also been denied.
See Rule 41, Federal Rules of Appellate
Procedure for issuance and stay of the
mandate.
A-31
Very truly yours,
EDWARD W. WADSWORTH, Clerk
by/S/ Susan M. Gravois
Deputy Clerk
/smg
CC: Mr. Charles Corces, Jr.
Mr. William F. Casler, Sr.
A-32
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
October Term, 1975
No. 75-1781
D. C. Docket No. CA73-316-T-H
LOUIE L. WAINWRIGHT, Director,
Division of Corrections,
Petitioner-Appellant,
versus
JOHN SYKES,
Respondent -Appellee
Appeal from the United States District
for the Middle District of Florida
Before GEWIN, BELL* and SIMPSON, Circuit
Judges.
JUDGMENT
This cause came on to be heard on the
transcript of the record from the United
States District Court for the Middle
A-33
District of Florida, and was argued by
counsel;
ON CONSIDERATION WHEREOF, It is now
here ordered and adjudged by this Court
that the judgment of the said District
Court in this cause be, and the same is
hereby, affirmed.
February 25, 1976
Issued as Mandate:
* Judge Bell participated fully in the de-.
cision of this case and concurred in this
opinion prior to the effective date of
his resignation, March 1, 1976.
A-34
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.