(concurring in part in the result, and dissenting in part):
Appellee Cottle was released from prison by the State, of Florida on parole. He had not completed his parole when he was convicted for public drunkenness in North Carolina in April and June of 1968. In view of these North Carolina convictions, the Florida Parole Commission conducted a hearing and decided to revoke Cottle’s parole. The majority concludes (1) that Florida denied Cottle his Fourteenth Amendment right to equal protection of the law because Fla. Stat. 947.23, F.S.A., permits a parolee with means to be represented by counsel at a parole revocation hearing but does not provide counsel for indigent parolees, like Cottle unable to afford to employ counsel, citing Griffin v. Illinois, 1955, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899, and Earnest v. Willingham, 10 Cir. 1969, 406 F.2d 681; and *276(2) that the second North Carolina conviction was unconstitutionally obtained because it violated Cottle’s Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, right to counsel, which the majority holds to be fully retroactive in its application, and, therefore, should not be considered by the Parole Commission in any proceeding to revoke Cottle’s parole.
I concur in the result reached that Cottle was unconstitutionally denied counsel at his parole revocation hearing before the Florida Parole Commission, but upon different reasoning than that employed by the majority.
I respectfully dissent from the majority holding that on this record the second North Carolina conviction was unconstitutionally obtained. That question is not properly in this case as I read the record before us.
I.
In Morrissey v. Brewer, 1972, 408 U. S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the Supreme Court found that the termination of parole would inflict a “grievous loss” on the parolee and, therefore, the process of termination must be accompanied with some form of procedural due process. Morrissey required that the revocation hearing provide the parolee with
. . . an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest tlie violation does not warrant revocation.
408 U.S. at 488, 92 S.Ct. at 2603, 33 L.Ed.2d at 498. To achieve those ends, it held that the parolee must be accorded
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499. The Court, however, specifically did not reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent. 408 U.S. at 489, 92 S.Ct. at 2604, 33 L. Ed.2d at 499.
I would decide the question the Supreme Court left unanswered in Morrissey and conclude that without the assistance of counsel the guarantees provided by Morrissey are of little practical benefit to the prisoner who, particularly the indigent, is often ineffectual, if not incapable, in organizing and presenting the information which should be put before the parole board. Although the parole revocation hearing lacks many of the intricacies of a criminal prosecution, the lawyer’s training and skill are peculiarly tailored to effectively analyze and introduce evidentiary matter bearing on the occurrence or non-occurrence, as well as the significance, of past events, conduct the examination and cross-examination of witnesses, and reveal the mitigating circumstances and subtleties not immediately obvious to anyone but the trained lawyer. Specht v. Patterson, 1967, 386 U.S. 605, 87 S.Ct. 1209, 18 L. Ed.2d 326; United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir. 1971, 443 F.2d 1079, 1087, 1088, vacated as moot, 404 U.S. 879, 92 S.Ct. 196, 30 L.Ed.2d 159.
Due process is an adequate and more logical ground than the equal protection argument advanced by the majority, but I agree that Cottle on one ground or the other, perhaps both, was entitled to counsel to assist him at his parole revocation hearing before the Florida Parole Commission.
*277II.
In Argersinger v. Hamlin, supra, the Supreme Court held that
. . . no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.
407 U.S. at 37, 92 S.Ct. at 2012, 32 L. Ed.2d at 538. Since only the second North Carolina conviction for public drunkenness involved incarceration, it is only that conviction, as the majority recognizes, which can arguably involve Argersinger.
The majority opinion adopts uncritically the finding of the district judge that Cottle “was not represented at the [North Carolina] trials . . ., solely because of his indigency” and notes that neither below nor here did the state of Florida contest this finding. Supra, Note 2, page 2. The court proceeds from this basis to apply Argersinger retroactively and holds that Cottle was denied counsel because of indigency in the second North Carolina conviction and that this conviction was improperly used against Cottle in his subsequent parole revocation hearing.
The district court held no evidentiary hearing. The only facts before it were those developed at the parole revocation hearing. That record wholly fails to show that Cottle was unable to employ counsel during the North Carolina proceedings. To the contrary, he told the Florida Parole Board that he had been receiving a monthly disability income of $100. As to the second North Carolina offense he stated that he planned to live in Wilmington, North Carolina, and did not want to create “any problems” with the arresting policeman whom he felt had been abusing him.
“So that’s the reason that I got mixed up in this little affair of saying that I was drunk or public drunk, which this officer — I don’t want to have any trouble because I knew I was going to be living in Wilmington and I didn’t want to get him fired, for that simple reason I didn’t get me a lawyer that morning and get out of all of it. It only costed me about 50 — 50 or 60 dollars, it done the whole job but I didn’t — I didn’t want to do that.”
This statement by Cottle himself indicates to me that he could afford counsel at the time of the second North Carolina proceeding. It certainly does not demonstrate indigency. His statement that “it costed” 50 or 60 dollars may refer to the going price for an attorney, or it may refer to the amount that could be expected to be imposed as a fine. He served the 20 days sentence imposed, perhaps to be free from any problems with the officer, but on the basis of his testimony not because he was unable to afford counsel. Cottle’s reason for not retaining counsel was given by him:
“ . . .1 didn’t want to have any trouble because I knew I was going to be living in Wilmington and I didn’t want to get him fired, for that simple reason I didn’t get me a lawyer that morning and get out of all of it.”
The district judge held no hearing. His finding that Cottle “was not represented . . . solely because of his indigency” was picked up from the brief filed before him by Cottle’s court-appointed attorney. It had no basis in the parole revocation record, the only evidentiary record made in this, case to date.
Since Cottle’s lack of counsel at the second North Carolina trial was not shown to be caused by or even connected with indigency, the majority’s holding that Argersinger rights of Cottle were there violated, however sound it may be legally, is totally lacking in factual underpinning. On this record, the question should not be reached. With deference, I dissent from the majority’s holding in this respect.