Germaine v. State

49 Fla. Supp. 190

Opinion

N. JOSEPH DURANT, Jr., Circuit Judge.

This court has considered the appellant’s motion for rehearing, and finding same to be meritorious, it is ordered and adjudged that the order of affirmance heretofore rendered by this court on September 7, 1979, is vacated for the following reasons —

The order of affirmance was predicted on the legal proposition that the petition for a writ of coram nobis was not the proper method of attacking an involuntary plea of guilty. In view of the case of LaRocca v. State, 151 So.2d 64 (2 DCA 1963), this court was in error in affirming the trial court.

In view of the fact that the record is clear that the guilty plea entered in the court below was accepted without the trial court first ascertaining whether it was knowingly and voluntarily made, it is ordered and adjudged that the judgment and sentence of the trial court is hereby reversed and this cause is remanded to the trial court with directions to permit the appellant to withdraw his plea of guilty, and to grant him a trial.

Concurring: RIVKIND and LEVY, JJ.