Argersinger v. Hamlin

PETITIONER: Argersinger
LOCATION: Leon County Courthouse

DOCKET NO.: 70-5015
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Florida Supreme Court

CITATION: 407 US 25 (1972)
REARGUED: Feb 28, 1972
DECIDED: Jun 12, 1972
ARGUED: Dec 06, 1971

Bruce S. Rogow - Argued the cause for the petitioner
Erwin N. Griswold - Argued the cause for the United States as amicus curiae on the reargument urging reversal
George R. Georgieff - Reargued the cause for the respondent
J. Michael Shea - Argued the cause for the petitioner pro hac vice

Facts of the case

Jon Argersinger was an indigent charged with carrying a concealed weapon, a misdemeanor in the State of Florida. The charge carried with it a maximum penalty of six months in jail and a $1,000 fine. During the bench trial in which he was convicted and sentenced to serve ninety days in jail, Argersinger was not represented by an attorney.


Do the Sixth and Fourteenth Amendments guarantee a right to counsel to defendants who are accused of committing misdemeanors?

Media for Argersinger v. Hamlin

Audio Transcription for Oral Argument - December 06, 1971 in Argersinger v. Hamlin

Audio Transcription for Oral Reargument - February 28, 1972 in Argersinger v. Hamlin

Warren E. Burger:

We'll hear arguments next in 70-5015, Argersinger against Hamlin.

Mr. Rogow you may proceed whenever you are ready.

Bruce S. Rogow:

Mr. Chief Justice and may it please the Court.

Certiorari was granted in this case to review the decision of the Florida Supreme Court which held four to three that the right to counsel extends only to those cases which carry a maximum punishment in excess of six months.

The petitioner in this case John Richard Argersinger who is convicted in the Leon County Court, in Tallahassee, Florida on a charge of carrying a concealed weapon.

The maximum punishment imposable on that charge was six months imprisonment or a fine of $1,000.00.

Because the maximum punishment imposable was only six months, the Florida Supreme Court held that Argersinger was not entitled to have been advised of his right to counsel.

Three dissenters in the Florida Supreme Court would have held that the right to counsel extends to any offense in which a man may loose his liberty.

Our position is essentially that.

Our position is that wherever the actual threat of incarceration exists, a man must be advised of his right to counsel and counsel must be appointed for him, if he cannot afford afford counsel, unless the defendant knowingly and intelligently waives that right.

Warren E. Burger:

Suppose the Judge at the outset, under a rule such as you suggest, concluded in his own mind that he was not going to impose any sentence, even though it was permitted and then went ahead with the trial, that would be alright under your theory, would it?

Bruce S. Rogow:

If went ahead with the trial and not imposed incarceration --

Warren E. Burger:

Imposed on your client?

Bruce S. Rogow:

Yes sir.

Warren E. Burger:

Now then if he imposed at the conclusion of the trial he concluded that he changed his mind that either the offense was much more serious than he had at first thought or perhaps probation report or some information about a prior record came to his notice and he concluded to impose the sentence, then the suggestion of offering him a new trial comes up.

What is your response to that?

Bruce S. Rogow:

Our position is that he would have to be offered a new trial with a benefit of counsel then no double jeopardy problem would be raised because this would be in effect an appeal, a voluntary act by the defendant in accepting a new trial.

Warren E. Burger:

What if you said no thank Your Honor, I want to stand on the trial at hand?

Bruce S. Rogow:

I think that he could waive counsel, even at that point, only if he was clearly advised of the consequences of his act.

He was clearly advised that this judges considering putting him in jail or he was going to put him in jail.

Warren E. Burger:

Let's assume he is a little more sophisticated than some of the defendants, that he answers the judge's suggestion by saying, no thank you Your Honor.

I have tried my case as well I was think it can be tried by anyone and the case is closed and it is your decision, except he makes the point you cannot send me into any confinement and I will not accept a new trial?

Bruce S. Rogow:

Well, I do not think that he would really have that option.

I think that he has the option to waive the right to counsel that point if the court has explained to him the circumstances that exist, the real threat that he may go to jail.

I do think he can in effect have his cake and eat it too and say now you tried me, now I am going to take this trial because I know you cannot incarcerate me.

I think that he has to make a decision between one or the other.

I think if he failed to make that decision, and if he stood on that first trial, I do think the decision will be able to be reviewed.

Warren E. Burger:

You do not see any double jeopardy problems, even if at the outset of the trial he had asked for counsel and then denied it, so that at the end of the trial, he said he wanted to stand on that trial and would oppose and object to a new trial on any term.

Bruce S. Rogow:

If he had been advised at the outset that there was an actual threat of incarceration and that he may very well go to jail and he had a right to counsel, then counsel be appointed and he waives his right --

Warren E. Burger:

My assumption is that at the outset he asked for counsel and the Judge said no I am not going to appoint counsel.