Lee v. State

204 So. 2d 245
District Court of Appeal of Florida·Decided November 14, 1967·No. 1115·Published·Cited by 13 cases

Opinion

204 So.2d 245 (1967)

Theodore L. LEE, Appellant,
v.
STATE of Florida, Appellee.

No. 1115.

District Court of Appeal of Florida. Fourth District.

November 14, 1967.

*246 W.D. Frederick, Jr., Public Defender, and S. Sammy Cacciatore, Jr., Asst. Public Defender, Orlando, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and James T. Carlisle, Asst. Atty. Gen., Vero Beach, for appellee.

BARNS, PAUL D., Associate Judge.

This is an appeal from a judgment denying appellant's post-conviction motion for relief from prior adjudication and sentence upon a plea of guilty. We affirm.

The defendant was represented by the Public Defender in the lower court and after entering a plea of not guilty to a charge of robbery, withdrew his not-guilty plea and entered a plea of guilty under the following circumstances.

"THE COURT: [April 27, 1965].
"Mr. Flaxer [his counsel] it has been called to my attention that although this defendant pleaded not guilty when he was arraigned February 2nd, this year, there is an indication that upon further conference with his Counsel he wishes to make a plea at this time.
"Now, Lee, in connection with this change of plea do you understand that a plea of guilty leaves you convicted the same as if a jury brought in a verdict of guilty?
"THE DEFENDANT: Yes, sir.
"THE COURT: Do you understand that you are subject to the same penalties as if you were convicted by a jury?
"THE DEFENDANT: Yes.
"THE COURT: Has anyone made any promises or threats on this change of plea?
"THE DEFENDANT: No, sir.
"THE COURT: Has anyone told you the Court would be more lenient than if you were tried by jury?
"THE DEFENDANT: No, sir.
"THE COURT: For the crime of robbery under the Statutes of Florida you *247 could be sentenced for the rest of your life; do you understand that?
"THE DEFENDANT: Yes, sir.
"THE COURT: Have you consulted with your attorney about this plea?
"THE DEFENDANT: Yes, sir.
"THE COURT: And he has explained all these matters that I have just gone over with you?
"THE DEFENDANT: Yes, sir.
"THE COURT: You are making this plea freely and voluntarily?
"THE DEFENDANT: Yes, sir.
"THE COURT: Change his plea from not guilty to guilty."

The appellant, aided by his counsel, the Public Defender, entered a plea of not guilty when arraigned on February 22, 1965, and afterwards withdrew his not-guilty plea and entered a plea of guilty on April 27, 1965, under the circumstances above recited, and was sentenced to imprisonment for life. On September 8, 1966, the defendant-appellant filed his post-conviction motion for relief from the prior judgment, which motion was denied without an evidentiary hearing.

Thereupon, the defendant has prosecuted this appeal, aided by the Public Defender, and urges here that he was coerced into entering his plea of guilty. The appellant's allegations of coercion are as follows:

"(B) Petitioner contends that he was coerced into the guilty plea by reason, unsufficiently involve while awaiting trial in Orange County Jail. The petitioner here, was approached by one Criminal Investagator (name unknown by petitioner) and told petitioner that the ods are against him (petitioner) and it is my understanding that you will testify against Jasper Wells, as a state wittness, due to the fact that you has another charge of robbery and that of course carry the pently of `life,' but if you cooperate I understand it the second charge will be droped or nun process, due to the fact that you are on (P.S.I.) Pre-Sentence Investagation, and at least you could be sure not to get but one life sentence if you should not cooperate, the state will do all possibilities to get you two (2) life sentences, one on each charge of robbery, plus your past record will be considered, and the escape that is pending on you. Therefore you has quite a bit to take under consideration, before you refuse to cooperate."

As stated in Tolar v. State, Fla.App. 1967, 196 So.2d 1, 3,

"Post-conviction motions for relief collaterally attacking judgments and sentences under Criminal Procedure Rule No. 1 are basically in the nature of writs of error coram nobis. The federal counterpart to Criminal Procedure Rule No. 1 is § 2255 of Title 28 U.S.C.A., from which Rule 1 was modeled. Austin v. State, Fla.App. 1964, 160 So.2d 730. As stated by the late Honorable John J. Parker concerning § 2255: `This motion is in the nature of an application for a writ of error coram nobis and is merely declaratory of existing law [cases cited].' 8 F.R.D. 171, 175. The Reviser's Note to § 2255, supra, states:
"`This section restates, clarifies and simplifies the procedure in the nature of the ancient writ of coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus. * * *'
"Annotation references: 96 L.Ed. 244; 20 A.L.R.2d 976. * * *"

Since § 2255 and Rule 1 were both for the purpose of meeting the same kind of practical problems encountered in habeas corpus proceedings, and since Rule 1 is almost literally the same as § 2255, a reading of United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232, is necessary for an understanding of the history, purpose and construction of both.

*248 A prisoner who is coerced into entering a plea of guilty is deprived of a constitutional right, but conclusory allegations of coercion are insufficient. As stated in Tolar v. State, Fla.App. 1967, 196 So.2d 1, 6:

"Motions seeking relief from confinement under Rule 1 must specifically allege facts which, if true, would entitle defendant to a vacation of his sentence; conclusory allegations are insufficient. Simmons v. United States, D.C.W.D.Ark. 1964, 227 F. Supp. 778, 785 (mental incompetency).
"As stated by 8 Moore's Federal Practice, 2d Ed., § 11.04 relating to post-conviction relief motions under § 2255, the `petition [motion] seeking relief must specifically allege facts which, if true, would entitle the defendant to vacate his sentence; conclusory allegations are insufficient', citing Simmons v. United States, supra."

As stated in Machibroda v. United States, 1962, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473:

"* * * A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack. See Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579, reversing, 5 Cir.,
Lee v. State, 204 So. 2d 245 (Fla. Ct. App. 1967).

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