107 So. 535 (Fla. 1926), Lamb v. State

Citation:107 So. 535, 91 Fla. 396
Opinion Judge:[91 Fla. 399] WHITFIELD, P.J.
Party Name:LAMB v. STATE.
Attorney:[91 Fla. 398] Thomas Palmer and W. B. Dickenson, both of Tampa, and John B. Singeltary and Dewey A. Dye, both of Bradentown, for petitioner.
Case Date:March 01, 1926
Court:Supreme Court of Florida
 
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Page 535

107 So. 535 (Fla. 1926)

91 Fla. 396

LAMB

v.

STATE.

Florida Supreme Court

March 1, 1926

En Banc.

John J. Lamb was convicted of murder in the first degree with a recommendation to mercy, and after affirmance of the judgment (107 So. 530), he petitions the Supreme Court for permission to apply to the judge of the circuit court, in which the trial was had and judgment rendered, for a writ of error coram nobis. Permission granted, and execution of mandate stayed for time allowed for making application.

See, also, 104 So. 855.

(Syllabus by the Court.)

COUNSEL

Page 536

[91 Fla. 398] Thomas Palmer and W. B. Dickenson, both of Tampa, and John B. Singeltary and Dewey A. Dye, both of Bradentown, for petitioner.

OPINION

[91 Fla. 399] WHITFIELD, P.J.

John J. Lamb was convicted of murder in the first degree with recommendation to mercy, and pursuant to the statute was sentenced to life imprisonment.

The judgment of conviction was affirmed by this court on writ of error at the last term. Lamb v. State, 107 So. 530.

Before the mandate of this court was transmitted to the trial court, Lamb presented here a petition sworn to by himself and by

Page 537

his counsel, praying that he be granted the privilege of applying to the judge of the circuit court in which the trial was had and judgment of conviction rendered, for a writ of error coram nobis, and alleging:

'That there are certain facts and evidence in existence at the time of his said trial and conviction which were unknown to him and were also unknown to his attorneys, and which have come to his knowledge long subsequent to his trial, conviction, and sentence, and long after the expiration of the time within which he could make his motion for a new trial, and which facts if known to the court at the time of his conviction and sentence would have caused the court to have entered a different judgment in said cause, to wit, a judgment in favor of the defendant, and this plaintiff in error is advised that if such matters could have been presented to the court the sentence and judgment of the court would not have been entered; that none of the said matters and things could have been known by him, or his attorneys, by the exercise of all reasonable diligence, because the defendant says that both he and his attorneys exercised all reasonable and ordinary care and diligence in an attempt to ascertain all matters of fact in relation to his said cause from the time of his arrest up until and including the present time.'

'The common and statute laws of England which are of a general and not a local nature * * * [with an exception not material[91 Fla. 400] here], down to the fourth day of July, 1776, be, and the same are hereby declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.' Section 71, Rev. Gen. Stats. 1920.

Common-law writs of procedure that have not been abrogated or superseded by the Constitution or by statutory regulations are available in this state, but the use of such judicial writs may be regulated by statute or by rules of court duly promulgated under statutory authority. See McClellan v. Wood, 83 So. 295, 78 Fla. 407; Rye v. Banks, 63 So. 825, 66 Fla. 434; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29, 4 Crim. Law Mag. 359, text 373.

The statutes of the state contain no express provisions regulating the use of writs of error coram nobis or coram vobis. See Collins v. Mitchell, 5 Fla. 364.

There is not now, and has never been, any limitation of time within which writs of error to this court from judgments of the circuit courts can be sued out in criminal cases. Collins v. State, 15 So. 214, 33 Fla. 429; Miller v. State, 15 Fla. 575.

In Nickels v. State, 98 So. 497, 502, 99 So. 121, 86 Fla. 208, a writ of error coram nobis was issued by the circuit court in a criminal case more than six months after the judgment of conviction, six months being the limitation within which writs of error in civil causes shall be issued. Section 2909, Rev. Gen. Stats. 1920; Eaton v. McCaskill, 43 So. 447, 53 Fla. 513; Simmons v. Hanne, 39 So. 77, 50 Fla. 267, 7 Ann. Cas. 322. In the Nickels Case a new trial was had because the material facts unknown to the court at the first trial was the tender of a plea of guilty under duress.

At common law in England a writ of error coram nobis [91 Fla. 401] issued from the Court of King's Bench to a judgment of that court; and a writ of error coram vobis issued from the Court of King's Bench to a judgment of the Court of Common Pleas. 13 C.J. 1235; Fugate v. State, 37 So. 554, 85 Miss. 94, 107 Am. St. Rep. 268, 3 Ann. Cas. 326; Sanders v. State, 85 Inc. 318, 44 Am. Rep. 29, 4 Crim. Law Mag. 359; 2 R. C. L. 305; 2 Tidd's Prac. 1136.

In some states there are statutory substitutes for the common-law writ of error coram nobis. Cramer v. Illinois Commercial Men's Ass'n, 103 N.E. 459, 260 Ill. 516; Billups v. Freeman, 52 P. 367, 5 Ariz. 268. But analogous procedure is observed when not otherwise provided by controlling law. State v. Riddell (R. I.) 97 A. 15; Smith v. Kingsley, 19 Wend. (N. Y.) 620; Duncan v. Sandford, 14 Johns. (N. Y.) 417; Davis v. Packard, 6 Wend. (N. Y.) 627; Higbie v. Comstock, 1 Denio (N. Y.) 652; Bolling v. Anderson, 1 Tenn. Ch. 127; Reed v. Bright, 134 S.W. 653, 232 Mo. 399; Cramer v. Illinois Commercial Men's Ass'n, 176 Ill.App. 1; Hodges v. State, 163 S.W. 506, 111 Ark. 22.

The circuit courts of this state have jurisdiction similar to that of the Court of King's Bench in England. Taylor v. State, 38 So. 380, 49 Fla. 69, text 77; Ex parte Henderson, 6 Fla. 279.

The remedy by writ of error coram nobis lies in the trial (circuit) court, as the principal aim of the writ is to afford the court in which the action was tried an opportunity to correct its own record with reference to a vital fact not known to the court when the judgment was rendered. In re Ernst, 192 N.W. 65, 179 Wis. 646, 30 A. L. R. 681; Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681.

This court has only appellate jurisdiction in criminal cases. The circuit courts have general original civil jurisdiction and also original jurisdiction in criminal causes [91 Fla. 402] not cognizable by inferior courts and appellate jurisdiction in misdemeanor criminal cases tried in lower courts, with 'power to issue * * * all writs proper and necessary to the complete exercise of their jurisdiction.' Section 11, art. 5, Const. The circuit court, being a court of general jurisdiction analogous to the Court of King's Bench, has jurisdiction to issue writs of error coram nobis to consider a fact or facts theretofore unknown to the court which if known at the trial would have prevented the rendering of the judgment that was rendered by the circuit court. Collins v. Mitchell, 5 Fla. 364; Nickels v. State, 98 So. 497, 502,

Page 538

99 So. 121, 86 Fla. 208; Johnson v. Straus Saddlery Co., 56 So. 755, 2 Ala. App. 300; 5 Ency. Pl. & Pr. 30.

If another remedy exists, a writ of error coram nobis will not be granted. In re Ernst, 192 N.W. 65, 179 Wis. 646, 30 A. L. R. 681.

The writ of error coram nobis is applicable to both civil and criminal cases. Ex parte Gray, 77 Mo. 160; Fugate v. State, 37 So. 554, 85 Miss. 94, 107 Am. St. Rep. 268, 3 Ann. Cas. 326; Ex parte Toney, 11 Mo. 661. It is not a writ of right, but may be granted in the exercise of sound judicial discretion, and will not be grantes unless it be duly shown that a fact existed at the trial that if then known to the court would have prevented the judgment that was rendered. 5 Ency. P. & Pr. 32; Dugan v. Scott, 37 Mo.App. 663; In re Ernst, 192 N.W. 65, 179 Wis. 646, 30 A. L. R. 681.

An application for a writ of error coram nobis must be made within the time allowed by statute for taking any writ of error; but where there is no such limitation in writs of error in criminal cases there is none as to writs coram nobis. State ex rel. Potter v. Riley, 118 S.W. 647, 219 Mo. 667; Gibson v. Pollock, 166 S.W. [91 Fla. 403] 874, 179 No. App. 188; State v. Wallace, 108 S.W. 542, 209 Mo. 358. See, also Strode v. Stafford Justices, Fed. Cas. No. 13,537.

The function of a writ of error coram nobis is to bring the attention of the court to a specific fact or facts then existing but not shown by the record and not known by the court or by the party or counsel at the trial, and being of such a vital nature that if known to the court in time would have prevented the rendition and entry of the judgment assailed. But in order to warrant the granting of a writ of error coram nobis in a criminal case, it must be duly shown by affidavits or other legal evidence that then existing particular facts pertinent to the case, if known to the court, would have prevented the judgment that was rendered; that such facts, though existing at the time, were unknown to the court and to the defendant and to his counsel when the judgment was rendered; that by the exercise of due diligence neither the defendant nor the counsel in the case could have known of or ascertained the stated facts before the judgment was rendered or before the motion for a new trial was made; and that the defendant and the counsel exercised all ordinary and reasonable care and diligence to discover and ascertain all facts pertinent to the issue tried; or it must be duly made to appear that such facts or other facts that would have afforded an effective defense, though existing or having occurred prior to the judgment, were not discovered or ascertained or were not made known to the court, because of actual, dominating fraud, duress,...

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