Edward Clay, Petitioner-appellee, v. Louie L. Wainwright, Director, Division of Corrections,state of Florida,, Respondent-appellant, 470 F.2d 478 (5th Cir. 1972)

This appeal involves the question whether habeas corpus relief was properly granted to an indigent state prisoner whose probation had been revoked solely on the basis of misdemeanor convictions obtained without benefit of counsel. Having exhausted his state remedies, the appellee in this case brought a petition for writ of habeas corpus in the District Court for the Middle District of Florida, alleging, inter alia, that since he had not been afforded counsel at his trials for five separate misdemeanor charges, his convictions therefor were invalid and could not be used as a basis for the state court's order revoking his probation. The district court granted the writ for habeas corpus relief and held that since the petitioner's period of probation had expired the state court had lost jurisdiction to reconsider the charges against him concerning violations of his probation. We affirm in part and reverse in part.

The facts of this case, as they appear from the Report and Recommendation of the magistrate who conducted an evidentiary hearing on the application for habeas corpus relief,¹  are as follows: Petitioner Clay (appellee herein) was informed against in the Court of Record in and for Manatee County, Florida, on June 6, 1968 for second degree murder in the stabbing death of Edward Lee Freeman on June 1, 1968. Clay entered a plea of nolo contendere to the lesserincluded charge of manslaughter and on December 11, 1968, the court withholding adjudication, placed Clay on probation for a period of eighteen months.²  As a condition of probation he was required, among other things not here relevant, to "live and remain at liberty without violating any law." This requirement appears as condition (h) on the standard form probation order.

On February 17, 1969, Clay was convicted by a justice of the peace for exhibiting a dangerous weapon, an offense which at that time carried a possible maximum penalty of three months in jail plus a fine. Later, on May 14, 1969 he was tried and convicted on four other criminal charges, all of which arose out of a single arrest. Two of them, obstructing justice and disorderly conduct, were heard before the court of record of Manatee County; the others, charges of open profanity and public drunk, were tried before a local justice of the peace. Cumulatively these four charges carried a possible maximum penalty well in excess of ninety days.³ 

With respect to all of these misdemeanor trials the magistrate found that "petitioner was not afforded counsel, petitioner did not waive counsel, petitioner was indigent."

Subsequently, on the basis of an affidavit submitted by Clay's probation officer setting forth these convictions of February and May, 1969, a warrant was sworn out in the court of record of Manatee County for Clay's arrest.⁴  As a result Clay was arrested and brought before the court of record which, on June 11, 1969, revoked Clay's probation, adjudged him guilty of manslaughter, and sentenced him to twenty years at hard labor in the state prison.⁵ 

Based upon the report of the magistrate and upon its own independent examination of the record, the district court found, and appellant Wainwright concedes, that revocation of Clay's probation was based solely on the five misdemeanor convictions described above. The court concluded that inasmuch as these five convictions were procured in violation of Clay's right to counsel, they must be vacated, and that as a consequence the order of revocation could not stand. Accordingly, Clay's application for writ of habeas corpus was granted. The state, in behalf of the director of the Florida Division of Corrections, appeals from that judgment.

We start with the proposition that under Florida law there is no question that an order revoking probation which is based solely on invalid convictions constitutes no legal basis for the continued imprisonment of a habeas corpus petitioner. The Supreme Court of Florida has so held. State ex rel. Roberts v. Cochran, 140 So. 2d 597 (Fla. 1962). Thus, we are faced only with the question whether, as a constitutional matter, Clay's misdemeanor convictions were invalid by virtue of having been obtained in violation of his right to counsel.

This issue, in the context of so-called "petty" offenses, has had a long and checkered career in the courts. Now, however, the matter has been put to rest, at least for the future, by the Supreme Court's recent decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972) in which Mr. Justice Douglas, speaking for the Court, said: ". . . absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." (P. 37, 92 S. Ct. p. 2012). The Court gave no indication as to whether the decision was to be applied retroactively, but we find it unnecessary to decide that question for we are of the view that the law of this circuit at the time of Clay's misdemeanor convictions in 1969 was such that those convictions necessarily must be vacated.

We note that the issue was squarely met in Harvey v. Mississippi, 340 F.2d 263, 271 (CCA 5, 1965), a case in which this court held that a person charged with a misdemeanor punishable by a fine of up to $500 and up to ninety days in jail was constitutionally entitled to be represented by counsel.⁶  It is argued, nonetheless, that by 1969 the Harvey decision was dead letter in this circuit, largely because of the intervening decision by the Supreme Court in Cheff v. Schnackenberg, 384 U.S. 373, 86 S. Ct. 1523, 16 L. Ed. 2d 629 (1962), which held that persons charged with a petty offense⁷  are not constitutionally entitled to trial by jury. See also Duncan v. Louisiana, 391 U.S. 194, 88 S. Ct. 1444, 20 L. Ed. 2d 552 (1968). However, that argument was rejected by this court in James v. Headley, 410 F.2d 325 (CCA 5, 1969)⁸  which held that notwithstanding the Supreme Court's decisions with respect to jury trials, Harvey v. Mississippi, dealing with right to counsel, was still "very much alive." See also Bohr v. Purdy, 412 F.2d 321 (CCA 5, 1969). The Court held that the two appellants, James and Miller, who had been charged with several different offenses arising out of a single arrest, each of which carried a maximum sentence of sixty days, were, under the rule announced in Harvey, entitled to the services of counsel.⁹ 

We are of the view that the convictions here at issue likewise fall within the ambit of Harvey v. Mississippi, and must be vacated. That being so, the district court properly vacated the state court's order revoking Clay's probation and adjudging him guilty of manslaughter.

Even so, appellant belatedly urges that the district court erred in holding that the petitioner "shall not be held to answer the charges against him in the Court of Record in Manatee County, Florida, relative to revocation of his parole, the period of probation having expired and the court therein having lost jurisdiction." Appellant contends that instead the proper disposition of this case is to remand the petitioner, who is currently at liberty, to the custody of the state for reconsideration of the question whether he violated his probation.

In its determination that Clay should not be held to answer the charges against him in the Court of Record in Manatee County, Florida, relative to revocation of his parole, the trial court adopted the recommendation of the magistrate, who, in his report, stated as follows:

"In view of the expiration of the original eighteen months probation, and the Court of Record in and for Manatee County having lost jurisdiction over petitioner as to probation (see F.S. 948.04, Streeter v. State of Florida, 211 So. 2d 32 (1968), Brooker v. State, 207 So. 2d 478, Fla. (1968), and the foregoing findings, I recommend that an order be entered providing that: . . . . (4) That the respondent discharge the petitioner from custody and that the petitioner not be held to answer the charges against him in the Court of Record in Manatee County, Florida, the period of probation having expired and the court therein having lost jurisdiction."

Although the State of Florida filed a motion for rehearing to the order of the trial court in the habeas corpus action, it made no comment whatever with respect to this issue, that is to say, the State complained only of the adjudication of the invalidity of the probation revocation proceedings, and took no issue with the determination that under the Florida statute mentioned in the magistrate's report, the Court of Record in Manatee County had no further jurisdiction over the matter. Moreover, when the State subsequently filed a motion for a stay of the trial court's order pending appeal to this court, in order that the petitioner might not be released from custody, it still did not criticize this part of the trial court's determination. Thus, the prisoner was released from custody without the State's ever having called to the attention of the trial court what it now contends to be the Florida law: that since affirmative action had been taken by the State to revoke Clay's parole within the eighteenmonths period, the Florida statute did not apply. Even beyond that, when the State appealed to this court from the judgment of the habeas corpus court it still did not complain of this disposition of the case by the trial court. No mention was made in the State's brief as appellant of this contention. Of course, therefore, nothing was said on the subject in Clay's brief as appellee in this court. Finally, within a few days of the oral argument, nearly a year after the case was here on appeal, the State filed what it called a "Reply Brief," which was, in fact, not a reply brief but an effort to file a supplementary brief in chief, for the first time attacking the determination originally made by the magistrate and adopted by the court to the effect that the Florida statute meant literally what it said when it provided:

"Upon the termination of the period of probation, the probationer shall be released from probation and shall not be liable to sentence for the crime for which probation was allowed." F.S.A. Sec. 948.04.

In its so-called reply brief, the State cites the Florida case of Carroll v. Cochran, 140 So. 2d 300 (1962) for the proposition that the State has not lost jurisdiction over a probationer under such circumstances as exist here, if "in the meantime the processes of the court have been set in motion for revocation or modification of the probation."

While this contention comes very late in the cause of the litigation, Clay's counsel did have an opportunity to counter the argument, both at oral argument and, if requested, by further brief. His failure to do so, we are sure stems from his recognition of the correctness of the state's legal position rather than from a lack of diligence on his part. Although not condoning the failure of the state to raise this issue with the district court, at a time when that court might have considered other issues raised by Clay, we nevertheless feel that we must notice what is the clear decisional law of Florida.

Without doubt the court order revoking Clay's probation, being invalid, cannot of itself justify the continued jurisdiction of the state court over Clay. However, under Florida law it would appear that the warrant sworn out for Clay's arrest, even though it was based solely on the invalid convictions, is nonetheless sufficient for the state court to retain jurisdiction over Clay as a probationer, notwithstanding the fact that technically Clay's probationary period has ended. On facts similar to those before us the Supreme Court of Florida, in State ex rel. Roberts v. Cochran, supra, held:

"We must, therefore, find that the . . . order based solely on the alleged [invalid] conviction constitutes no valid basis for the continued imprisonment of Roberts. However, this does not mean that the prisoner is entitled to immediate release. He is properly in custody under the warrant charging a violation of probation." at 600. (emphasis added)

As to the validity of the warrant the court went on to say:

"We do not overlook the fact that this warrant charges a violation of 'Condition H' as a result of the Polk County proceedings. However, in any subsequent hearing before him the trial judge . . . has full power to disregard the judgment of conviction as such and make an independent determination as to whether the law was violated in order to lead to a revocation of probation."¹⁰  Id.

In view of this decision we think that the court of record in Manatee County has not lost jurisdiction over Clay. Pending further proceedings in the district court¹¹  the court of record is doubtless entitled to hold a rehearing on the issue of revocation. However, even if it be determined at a subsequent hearing that Clay did in fact violate his probation, we recognize that the fact that his misdemeanor convictions were invalid may have some bearing on the sentence, which might ultimately be meted out.¹²  As the Supreme Court pointed out in the recent case of United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1971), the real question here is not whether the results of Clay's misdemeanor trials might have been different if he had had counsel, but whether the sentence given him upon revocation of probation might have been different if the sentencing judge had known that all five of Clay's misdemeanor convictions had been unconstitutionally obtained. In Tucker, the Supreme Court found the answer to be "yes". Here, if the sentencing judge had been aware of the constitutional infirmity of these convictions the circumstances of Clay's behavior on probation might "have appeared in a dramatically different light at the sentencing proceeding." United States v. Tucker, supra, at 448, 92 S. Ct. at 592.¹³ 

For the foregoing reasons we conclude that although Clay's misdemeanor convictions in February and May, 1969 and the judgment and sentence following the revocation must be vacated, the court of record in and for Manatee County nonetheless retains jurisdiction over petitioner.

Affirmed in part, reversed in part, and remanded for proceedings not inconsistent with this opinion.