(dissenting):
The state trial court conducted an evidentiary hearing but made no express findings of fact. Instead, it simply ruled that “on the testimony and evidence presented the court would deny your motion to suppress in all particulars.” (R. 561.) The federal district court relied upon the facts as found by the state appellate court in affirming the judgment of conviction. Dempsey v. State, D.C.App.Fla., 3rd Dist., 1970, 238 So.2d 446.
Appellant’s statement to Lieutenant Shepherd quoted in n. 1 to the majority opinion was found not to have been the result of questioning, but to have been made approximately two hours after the appellant had asked for a lawyer, and when one had not been provided. Appellant’s request for counsel should have been honored within a reasonable time under all of the circumstances. Beyond such time, appellant should not be subjected to the risk of making a damaging statement without the advice of counsel. I would reverse for an evidentiary hearing as to whether appellant’s statement was a result of a failure or refusal to provide him counsel within a reasonable time after his request.