356 F2d 104 Lastinger v. United States

356 F.2d 104

Harry James LASTINGER, Appellant,
UNITED STATES of America, Appellee.

No. 22524.

United States Court of Appeals Fifth Circuit.

January 28, 1966.

Rehearing Denied March 3, 1966.

Harry James Lastinger, pro se.

Fred S. Clark, Asst. U. S. Atty., Donald H. Fraser, U. S. Atty., Savannah, Ga., for appellee.

Before BROWN and COLEMAN, Circuit Judges, and GARZA, District Judge.


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This appellant pleaded guilty to an information charging him with two felonies involving a United States Treasury check, Sections 1708 and 495 of Title 18, U.S.C.A. Eight months later he moved for vacation of sentences pursuant to 28 U.S.C.A., Section 2255. He alleged that "at no time, in either the pre-trial proceedings or in the trial itself, was Movant either advised of his right to have counsel appointed for him by the Court or offered the assistance of legal counsel". The District Court denied the motion for the reason that "the files and records of the case conclusively show the petitioner is entitled to no relief". Appeal to this Court was allowed in forma pauperis.


An examination of the record reveals that the following occurred in open court at the time this appellant waived indictment, waived venue, and pleaded guilty:


"Mr. Chadwick (Assistant U. S. Attorney). I will ask you if you have an attorney?


"The Defendant. No sir.


"Mr. Chadwick. Do you want one?


"The Defendant. No sir."


This is all that was said on the subject. Appellant was not advised of his right to counsel. Neither was he informed that if he desired counsel and was unable to obtain it then the Court would provide it for him.

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This failure invalidated the plea and all subsequent proceedings. Harvey v. State of Mississippi, 5 Cir., 1965, 340 F.2d 263, 269. Davis v. Holman, 5 Cir., 1965, 773 F.2d 354.


The sentences, therefore, must be vacated, and we do not reach the other questions raised by this appeal.