Ballard v. State, s. 66--475

• Decision Date: 27 June 1967
• Docket Number: Nos. 66--475,s. 66--475
• Citation: 200 So.2d 597
• Parties: Harry Lee BALLARD and Sam Coley, Appellants, v. The STATE of Florida, Appellee. 66--500.
• Court: Florida District Court of Appeals

Page 597

200 So.2d 597

Harry Lee BALLARD and Sam Coley, Appellants, v. The STATE of Florida, Appellee.

Nos. 66--475. 66--500.

District Court of Appeal of Florida, Third District.

June 27, 1967.

Robert L. Koeppel, Public Defender, Phillip A. Hubbart, Asst. Public Defender, Tobias Simon and Alfred Feinberg, Miami, for appellants.

Earl Faircloth, Atty. Gen., and Barry N. Semet, Asst. Atty. Gen., for appellee.

Before CHARLES CARROLL, BARKDULL and SWANN, JJ.

PER CURIAM.

The appellants Sam Coley and Harry Ballard were indicted for rape. When arraigned they pleaded not guilty. Each made a confession, which the trial court on motion to suppress ruled was freely and voluntarily made. Thereafter, with the benefit of advice of counsel, the defendants withdrew their original pleas and each pleaded guilty. Based on the latter pleas, which the court accepted, the defendants were adjudged guilty, and each was sentenced to confinement in the state penitentiary for a period of 99 years.

They now have appealed from orders entered by the trial court after evidentiary hearing, denying their motions for relief under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix. The appellants contended in their motions that they were not advised of their rights; that their guilty pleas were induced through coercion; that they were denied compulsory attendance of witnesses at trial; and that the hearing held on their motions was not a full evidentiary hearing because they were not present.

We have examined the record of the proceedings on the Rule 1 motion and conclude that the trial court did not commit error in denying the motions.

On the hearing on Rule 1 motions the court was entitled to accept the testimony of the experienced and able attorneys who had represented the defendants at the trial, ¹ as a basis for determining that the allegations of the movants, that the guilty pleas were improperly induced, were unfounded.

The contention of the appellants that they were denied the right to compulsory process of witnesses at the trial of the cause was stated in the motion as a conclusion, unsupported by factual allegations. For that reason (Roy v. Wainwright, Fla.1963, 151 So.2d 825, 828; State v. Weeks, Fla.1964, 166 So.2d 892, 897), and because their pleas of guilty obviated trial, that contention presented no issue for determination on the Rule 1 motions.

Nor does the fact that the movants were not present at the hearing on the Rule 1 motions require reversal. The question of whether their presence was essential or would be halpful was one for determination by the trial judge, and, in the circumstances reflected by the record, it is not made to appear that the trial judge abused discretion in that regard. In State v. Weeks, supra, the Supreme Court of Florida, regarding consideration of Rule 1 motions stated:

'If the motion reflects substance and there is nothing conclusively in the record to the contrary, a hearing should be granted. The trial court would again have the judicial discretion to determine whether the presence of the prisoner at the hearing is essential or would be helpful. In general, this decision would be influenced by a consideration of whether the testimony of the prisoner on factual conflicts is required to produce a correct result.'

No reversible error having been made to appear, the orders appealed from are affirmed.

Affirmed.

1 'The Court: Mr. Prebish, which one of these accused did you represent? Mr. Prebish: Mr. Clar and I had been designated, I believe, Judge, to represent the defendant Ballard. The defendant, since our discharge by Your Honor after the...