Earl Gunsby v. Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida

Fifth Circuit

Earl Gunsby v. Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida

552 F.2d 127, 1977 U.S. App. LEXIS 13419

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 12, 1977

Docket76-4291

StatusPublished

Cited by6 cases

This text of 552 F.2d 127 (Earl Gunsby v. Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Earl Gunsby v. Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida, 552 F.2d 127, 1977 U.S. App. LEXIS 13419 (5th Cir. 1977).

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Opinion

PER CURIAM:

Earl Gunsby was charged with committing robbery. He entered into a plea bargain with a Florida prosecutor. He agreed to testify against a co-defendant, and the State agreed that Gunsby’s maximum sentence would be seven years. Shortly after entering the guilty plea, Gunsby gave a sworn statement to the prosecutor in which he incriminated himself and his co-defendant.

At the trial of the co-defendant, Gunsby’s testimony differed from that given in the sworn statement. The co-defendant was acquitted. The State’s motion to withdraw Gunsby’s guilty plea because of his failure to keep the plea bargain was granted. Gunsby entered a plea of not guilty and went to trial. Over defense objection, the prosecution introduced the inculpatory statement. The jury found Gunsby guilty, and he was sentenced to serve 20 years.

The district court granted Gunsby’s petition for a writ of habeas corpus, finding that the sworn statement was part of the *128 aborted plea bargain and that evidence thereof should not have been presented to the jury. The district court ordered Guns-by re-tried in 120 days, and the respondent has appealed.

Subsequent to the district court’s order, the Supreme Court decided Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976). In that case a confession made subsequent to a plea bargain was held to be admissible at trial after the plea bargain soured because the confession was not part of the plea bargain. In the case before us the appellant argues that the inculpatory statement was not part of the plea bargain; the appellee contends that it is. The record is unclear on this point. Since Hutto v. Ross cannot be applied without this factual determination, we reverse the district court’s order and remand for an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

REVERSED AND REMANDED.

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PER CURIAM:

Earl Gunsby was charged with committing robbery. He entered into a plea bargain with a Florida prosecutor. He agreed to testify against a co-defendant, and the State agreed that Gunsby’s maximum sentence would be seven years. Shortly after entering the guilty plea, Gunsby gave a sworn statement to the prosecutor in which he incriminated himself and his co-defendant.

At the trial of the co-defendant, Gunsby’s testimony differed from that given in the sworn statement. The co-defendant was acquitted. The State’s motion to withdraw Gunsby’s guilty plea because of his failure to keep the plea bargain was granted. Gunsby entered a plea of not guilty and went to trial. Over defense objection, the prosecution introduced the inculpatory statement. The jury found Gunsby guilty, and he was sentenced to serve 20 years.

The district court granted Gunsby’s petition for a writ of habeas corpus, finding that the sworn statement was part of the *128 aborted plea bargain and that evidence thereof should not have been presented to the jury. The district court ordered Guns-by re-tried in 120 days, and the respondent has appealed.

Subsequent to the district court’s order, the Supreme Court decided Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976). In that case a confession made subsequent to a plea bargain was held to be admissible at trial after the plea bargain soured because the confession was not part of the plea bargain. In the case before us the appellant argues that the inculpatory statement was not part of the plea bargain; the appellee contends that it is. The record is unclear on this point. Since Hutto v. Ross cannot be applied without this factual determination, we reverse the district court’s order and remand for an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

REVERSED AND REMANDED.

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552 F.2d 127, 1977 U.S. App. LEXIS 13419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earl-gunsby-v-louie-l-wainwright-secretary-department-of-offender-ca5-1977.

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