Sullivan v. State

18 So. 2d 163, 154 Fla. 496, 1944 Fla. LEXIS 743

• Court: Supreme Court of Florida
• Decided: May 26, 1944
• Status: Published

Opinion

ADAMS, J.:

George L. Sullivan has filed his petition for leave to apply for writ of error coram nobis. He was convicted of murder and sentenced to death. The judgment was affirmed by us at this term. Now he shows that one of the petit jurors who sat on the panel that convicted him was a deputy sheriff. That the deputy sheriff qualified under oath when he was interrogated by stating that he held no office or commission under the United States or the State of Florida, and defendant did not learn differently until it was too late to raise the question by motion for a new trial or appeal.

Assuming that the juror was disqualified under the statute, Sec. 40.07, F.S. ’41 F.S.A., we must first ascertain whether the matter may be considered on writ of error coram nobis. Coram nobis has been considered many times by us. See Chesser v. State of Florida, 92 Fla. 754, 109 So. 906; House v. State, 127 Fla. 145, 172 So. 734; Chambers v. State, 136 Fla. 568, 187 So. 156, certiorari granted Chambers v. State of Florida, 308 U. S. 541, 60 S. Ct. 127, 84 L. Ed. 456, reversed 309 U. S. 227, 60 S. Ct. 472, 84 L. Ed. 716; Hysler v. State, 146 Fla. 593, 1 So. (2nd) 628, certiorari granted, 313 U. S. 557, 61 S. Ct. 1113, 85 L. Ed. 1518, affirmed 315 U.S. 411, 316 U.S. 642, 62 S. Ct. 688, 86 L. Ed. 932.

The law is well settled that the writ is not available unless the error claimed would have precluded the entry of a judgment against the petitioner. It is not enough to say that the error would compel the reversal of the judgment for another trial.

The petition is denied on authority of Chesser v. State, supra.

So ordered.

BUFORD, C. J., CHAPMAN and SEBRING, JJ., concur.