Respondents Brief — Kinser v. Florida

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IN THE |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO. sa°

KENNETH CARROL KINSER,

Petitioner,

vs.

THE STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL OF

FLORIDA, THIRD DISTRICT

BRIEF OF RESPONDENT IN OPPOSITION

ROBERT L. SHEVIN

Attorney General

State of Florida

WILLIAM L. ROGERS

Assistant Attorney General

Sunset Executive Center

8585 Sunset Drive

Miami, Florida 33143

(305) 279-8700

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INDEX

PAGE

OPINION BELOW......... pa eeeve coon |

JURISDICTION... ccccccee Seseecene 1

QUESTION PRESENTED

POR REVIEW. . ccc ccccscscccccsvcece 1-2

HOW THE FEDERAL QUESTION

WAS PRESENTED. ....ccccccccccccces 2

STATEMENT OF THE CASE AND

PREPS sbeebs siverdoccecrecsiecrvocese 2-3

ARGUMENT . occ ccccccccccccccccccces 3-8

CONCLUSION. ccc wc ccccsccvccecesces 9

CERTIFICATE OF SERVICE... cc ccncee 9

TABLE OF AUTHORITIES

Boykin v. Alabama,

595 U.S. 238 (1969)... cccscoes 7

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TABLE OF AUTHORITIES

CONTINUED

CASES

Henry v. Mississippi,

379 U.S. 443, 451-452 (1965)......

Murch v. Mottram,

U.S. » 93 S.Ct. 71 (1972).

Parks v. State,

263 So.2d 642 (Fla., 3rd DCA,

1972) wccce0 ccc ccecccccccccccccsece

Pool v. United States,

344 F.2d 943 (9th Cir., 1965).

Quartz v. State,

258 So.2d 283 (Fla., 3rd DCA,

WOT 2) wcccccccccccccccccccvcsccces

Roy v. Wainwright,

352 GO: 26 Geo UFkRes BOGS) ckcccce

State v. Wooden,

246 So.2d 755 (Fla., 1971).......-

United States v. Hunt,

413 F.2d 983 (4th Cir. 1969)......

United States v. Marcello,

423 F.2d 993, 1005 (Sth Cir.,

1970) .ccccce Trrrrrrrrrerr rere i eee

Yeloushan v. United States,

339 F.2d $33 (Sth Cir., 1964)....

PAGE

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OTHER AUTHORITIES

Rule 3.850, Florida Rules of Criminal

PROGR ss ke 6050000468400 ped adesewesenes 4

Section 2255, Title 28 United States

Code.. oenertineeeneneetenee#sfee#ee#e 0.666) 663.026 680 0%

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OPINION BELOW

The opinion of the District Court of

Appeal of Florida, Third District is

reported at 291 So.2d 80 (Fla., 3rd

DCA, 1974). The opinion is reproduced

in the Appendix to the Petition for

Certiorari at A 1-2.

JURISDICTION

The jurisdictional requisites are

set forth in the Petition. However,

respondent contests the fact that

jurisdiction in this Honorable Court

has been properly invoked inasmuch

as based upon the following facts

and authorities no substantial fed-

eral question has been made to ap-

pear.

QUESTION PRESENTED FOR REVIEW

WHETHER A SUBSTANTIAL FEDERAL

QUESTION IS PRESENTED BY THE

OPINION BELOW WHICH HELD THAT

THERE WAS NO VIOLATION OF PET-

ITIONERS' CONSTITUTIONAL RIGHTS

WHERE WAIVER OF TRIAL BY JURY

WAS ANNOUNCED TO THE COURT BY

be

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THE PETITIONER'S PRIVATELY

RETAINED ATTORNEY, AND SUB-

SEQUENTLY THE PETITIONER

HIMSELF SIGNED A WRITTEN

WAIVER OF TRIAL BY JURY IN

OPEN COURT WITH APPROVAL OF

THE COURT AND THE CONSENT

OF THE STATE?

HOW THE FEDERAL ee

Se ENTE

The issue before this Court was

first raised by the petitioner on

direct appeal from his conviction.

At that time through his assignment

of error number 8 the defendant as-

serted that his waiver of trial by

jury was not voluntarily executed

nor was it an intelligent waiver of

his constitutional rights. It should

be noted that at no time did the de-

fendant seek to withdraw his waiver

before the trial judge nor did he

seek to apprise the trial judge of

any of the errors now asserted by

means of a motion for new trial.

STATEMENT OF THE CASE AND FACTS

The Statement of the Case as set

forth by the petitioner substantially

reflects the proceedings in the court

below. However, respondent takes

o$-

issue with the inclusion of peti-

tioners Footnote number 6 attempting

to set forth certain additional "facts

which do not appear" in the record

on appeal. These "facts" admittedly

were obtained by counsel from several

conversations which took place outside

of the courtroom between the petitioner

and his prior attorney. These "facts"

have never been presented to any prior

reviewing court, have no basis in any

prior records of the instant cause and

are now entirely improper in a petition

for certiorari before this Honorable

Court.

ARGUMENT

The threshold question for deter- .,

Mination of petitioner's present

Challenge before this Court is whe-

ther the record developed on appeai

in the state courts is adequate to

support and fully explore the con-

stitutional issues he seeks to raise.

At least a major portion of the ne-

cessary facts in support of peti-

tioner's cause are set forth by

means of Footnote #6 to petitioner's

Statement of the Case. It is ad-

mitted by the petitioner that the

aforesaid facts do not appear in

petitioner's record on appeal since

these very same facts resulted not

from development at any judicial

proceeding but only from hearsay

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PRA Behr caste lial Sai) nance tet Manga baht Od gE A ata aren as I)

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conversation between counsel and the

petitioner outside of court. It is

incumbent on the petitioner to deve-

lop a record sufficient to support

review. This he clearly has not

done. This failing becomes even

more glaring in light of the proce-

dure provided by the Florida Rules

of Criminal Procedure for develop-

ment of post-conviction relief.

Rule 3.850, Florida Rule of Criminal

Procedure, is a direct counterpart

to Section 2255 of Title 28 United

States Code. The rule, promulgated

by the Florida Supreme Court, was

intended to provide a complete and

efficacious post-conviction remedy

to correct convictions on any grounds

which subject them to collateral at-

tack. See Roy v. Wainwright, 151

So.2d 825 (Fla. ° e rule pro-

vides for relief on any of four grounds:

(1) that the sentence was imposed in

violation of the constitution or laws

of the United States or of the State

of Florida, (2) that the sentencing

court lacked jurisdiction, (3) that

the sentence was in violation of the

maximum authorized by law, or (4)

that the sentence is otherwise sub-

ject to collateral attack. By vest-

ing jurisdiction in the trial court,

the original trial judge is empowered

to conduct an evidentiary hearing and

if necessary correct any error going

to the validity of the judgment and

sentence. State v. Wooden, 246 So.2d

788 (Fla., 1971).

ae

Petitioner's total failure to ex-

plore any avenues of relief in the

trial court has made it difficult

if not impossible to accurately de-

fine the applicability of key con-

Stitutional issues to the facts of

the instant case. As a result the

record on appeal in this case is as

yet undeveloped. Those facts which

are necessary to shape out the skele-

ton of petitioner's constitutional

challenge have been supplied not as

a result of any hearing in the con-

text of an adversary proceeding but

rather in the form of suggestion by

counsel in petitioner's Footnote #6.

At the least, the assertion of

these additional facts raises the

distinct possibility that counsel's

decision to waive trial by jury

may have been motivated by a deli-

berate choice of trial strategy.

If indeed counsel had such purpose

in mind in waiving trial by jury,

the constitutional objection now

raised would be clearly waived.

As this court stated in Henry v.

Mississippi, 379 U.S. 443, SELL

(1965).

"If [a strategic reason]

motivated the action of

petitioners counsel, and

their plans backfired,

counsel's deliberate choice

of the strategy would a-

mount to a waiver binding

iPS ae ep akeyirie hah ach nA) USN ate Ret abla tact Ree RT Bi) IE

cree te ee

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on petitioner and would

preclude him from a deci-

Sion on the merits of his

federal claim either in

the state courts or here.

Although trial strategy

adopted by counsel without

prior consultation with an

accused will not, where the

circumstances are exceptional,

preclude the accused from

asserting constitutional

claims, See Whitus v.

Balkom, 333 F.2d 496 (Sth

Cir., 1964), we think that

the deliberate bypassing

by counsel of the contem-

poraneous objection rule

as a part of trial strategy

would have that affect in

this case."

Since no objection was ever made in

the trial court either before or

after trial that the waiver may not

have been entirely knowing and vol-

untary the trial judge was never

presented with an opportunity to

explore the invalidity of the waiver.

The United States Court of Appeals

for the Fifth Circuit in United States

v. Marcello, 423 F.2d 993, 1005 (Sth

Cir., 1970), citing to Henry, supra,

has clearly held that an attorney's

conscious waiver of a constitutional

right in order to obtain a tactical

a%.

advantage for his client is then

binding on the defendant. In ac-

cord is Yeloushan v. United States,

339 F.2d 533 (Sth Cir., 1964), holding

that a waiver bars direct appeal of

the constitutional right to trial by

jury in the district in which the crime

was committed. See Murch v. Mottram,

U.S. » 92 C.OE. Va Ceres

Petitioner now suggests that he

desired a trial by jury but was

forced to accept his counsel's deci-

sion as to waiver of the jury. This

suggestion is made for the first time

before this Court. No challenge was

made in the trial court and on appeal

petitioner's only argument in his

brief was that it was per se error for

the trial judge not to inquire of the

defendant at the time of his waiver

of trial by jury. As a result, the

instant record is now devoid of facts

surrounding counsel's decision to

waive the jury although such facts

could have been brought out by hearing

on a motion to vacate judgment and sen-

tence pursuant to Rule 3.850 Fla. R.Cr.

P. See Parks v. State, 263 So.2d 642

(Fla., 3rd DCA, 1972).

Petitioner now seeks to extend

the reasoning of this Court's opin-

ion in Boykin v. Alabama, 395 U.S.

238 (1969) to the instant case.

Apart from the fact that Boykin

was denied upon a silent record

whereas in the case below the de-

fendant executed a written waiver

> leks poe Uwe

of his right to a jury,* the funda-

mental difference between the cases

is that Boykin was entering a plea

of guilty, thereby admitting the

ultimate issue of the trial and sur-

rending nearly all constitutional

protections. Kinser surrendered not

nearly as much, his waiver going only

so far as to select which trier of

fact would sit at his trial. The com-

parison between the two situations

is not compelling. Following this

reasoning, Florida law provides that

the execution of a written waiver of

jury trial in open court by the defen-

dant is sufficient by itself, and that

the judge's failure to make further

inquiry of the defendant is not grounds

for reversal. Quartz v. State, 258

So.2d 283 (Fl.., 3r ), re-

lying upon United States v. Hunt, 413

F.2d 983 (4th Cir., 1969) and Pool v.

United States, 344 {3 2d 943 (9th Cir.

1965).

® “Although petitioner contends the

stamped waiver form was so blurred

as to be illegible, he admits in his

Footnote#6 that defense counsel told

petitioner he was going to waive trial

by jury and petitioner "was told by

his attorney what he was signing.”

e

CONCLUSION

On the existing facts of the case

at bar the federal question presented

by petitioner is insubstantial. It

is respectfully urged that this Court

should deny jurisdiction.

Respectfully submitted,

. ROBERT L. SHEVIN

Attorney General

WILLIAM L. ROGERS

Assistant Attorney General

Sunset Executive Center (75)

8S8S Sunset Drive

Miami, Florida 33143

(305) 279-8700

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of

the foregoing Brief of Respondent in Op-

position was served upon the HONORABLE

PHILIP CARLTON, JR., Suite 217 Biscayne

Building, 19 West Flagler Street, Miami,

Florida 33130, this day of February,

1975.

WILLIAM L. ROGERS

Assistant Attorney General