Robert Alphee Trepanier, Plaintiff-appellant, v. Louis L. Wainwright, Director, Division of Corrections, State of Florida, Defendant-appellee, 433 F.2d 1312 (5th Cir. 1970)

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U.S. Court of Appeals for the Fifth Circuit - 433 F.2d 1312 (5th Cir. 1970) December 2, 1970

Appeal from the United States District Court for the Middle District of Florida at Jacksonville; William A. McRae, Jr., Judge.

Davisson F. Dunlap (ct. appt.), Ellis E. Neder, Jr. (ct. appt.), Sears, Dunlap & Sears, Jacksonville, Fla., for appellant.

Earl Faircloth, Atty. Gen., J. Christian Meffert, Nelson E. Bailey, James Robert Yon, Asst. Attys. Gen., Tallahassee, Fla., for appellee.

Before TUTTLE, DYER and SIMPSON, Circuit Judges.


This is an appeal from the denial by the trial court of appellant's petition for habeas corpus after an evidentiary hearing on the claim of lack of counsel was held.

The evidentiary hearing was held in the United States District Court without the benefit of the state court record. Appellant and the State agree that although efforts were made to find such record, the efforts had been fruitless. Now, it appears, the state court record has been found, and counsel for the State agrees with appellant that the case should be remanded to the trial court for a further hearing, with the state court record available.

The judgment is reversed and the case is remanded to the trial court for further proceedings during which the trial court will consider the state record and such further evidence as may be necessary in light of the facts thus developed.