Opinion
Nos. 77-1624, 77-1753.
December 27, 1978. Rehearing Denied March 7, 1979.
Appeal from the Circuit Court for Palm Beach County, Marvin U. Mounts, Jr., J.
Richard L. Jorandby, Public Defender, and Charles D. Peters, Kenneth R. Barba, Asst. Public Defenders, West Palm Beach, for appellants.
Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
Affirmed.
CROSS and MOORE, JJ., concur.
DAUKSCH, J., dissents with opinion.
ON MOTION FOR REHEARING
Motion for rehearing is DENIED.
CROSS and MOORE, JJ., concur.
DAUKSCH, J., dissents.
I respectfully dissent.
The public defender was appointed to represent these two appellants for trial. Due to inadequate preparation for trial the lawyer did not discover until after the trial had begun that a conflict of interests existed. His representation of the two accused persons prevented at least one of the accused brothers testifying about his involvement, or alleged lack thereof, in the crime. In my opinion, justice requires a reversal and a new trial for both appellants. It is noted the same public defender who failed below urges his failure here. I wonder if he can be as objective on appeal as another lawyer might be. The continuing conflict might have caused this appeal not to have been argued as strenuously as it could have been. All of this goes to a constitutional right to effective assistance of counsel and a constitutional right to procedural due process before a valid conviction.
The opinion in this case is in conflict with Wilson v. State, 348 So.2d 10 (Fla. 4th DCA 1977) and Baker v. State, 202 So.2d 563 (Fla. 1967) and that is why I dissented and why I think we should grant rehearing and grant a new trial.