In support of the contention that the failure to appoint counsel renders the judgment and conviction void, applicant cites the following cases: Williams v. Kaiser, Warden, 323 U.S. 471,89 L. Ed., 398, 65 S. Ct., 363; Townsend v. Burke, Warden,334 U.S. 736, 92 L. Ed., 1690, 68 S. Ct., 1252; Wade v. Mayo,Custodian, 334 U.S. 672, 92 L. Ed., 1647, 68 S. Ct., 1270;Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 93 L. Ed., ----, 69 S. Ct., 184.
These cases are distinguishable from the instant case on the facts. The Williams case involved a capital offense. The defendant requested the court to appoint counsel which was denied. The court on the whole record found that the defendant was unable to make a proper defense. In the Townsend case, the court found that the trial court was given wrong information relative to prior offenses which, when aggravated by circumstances showing that it resulted in the prisoner being actually taken advantage of, or prejudiced, and in the absence of counsel, resulted in a denial of due process. In the Wade case, an eighteen-year-old youth was charged with a capital offense. He pleaded not guilty and requested the court to appoint counsel. The court refused to appoint counsel and forced the prisoner to trial which resulted in a conviction. The court found that the youth was incapable of adequately representing himself in the trial. The Uveges case is, also, distinguishable on the facts.
In the Townsend case, the court held that the due process clause of the Fourteenth Amendment to the United States Constitution does not prohibit the state *Page 410 from accepting a plea of guilty in a noncapital case from an uncounseled defendant.
In Bute v. Illinois, 333 U.S. 640, 92 L. Ed., 986,68 S. Ct., 763, the court held that in a noncapital case failure to appoint counsel does not always result in a denial of due process. The court held that in the absence of any showing which would require it, the due process clause of the Fourteenth Amendment did not require the trial court to initiate an inquiry or the offer or assignment of counsel. In that case, as in the instant case, the court held that there was nothing in the record to show that the petitioner, at the time of trial, either desired counsel or was unable to procure counsel.
The severity of the punishment, if within statutory limits, cannot be successfully urged in support of the claim that defendant was taken advantage of or was prejudiced by failure to appoint counsel. Townsend v. Burke, supra.
Because of the view we take of this case, and the proposition of law applied, we do not deem it necessary to decide whether in the instant case the trial court was or was not under a legal duty to make inquiry of the defendant to determine his indigency or advise the defendant that he was entitled to counsel. On the record presented, it is sufficient for this court to hold the failure to appoint counsel did not constitute a denial of due process.
Application for rehearing denied.
WISEMAN, P.J., MILLER and HORNBECK, JJ., concur. *Page 411