Banks v. State

• Citation: 136 So.2d 25
• Decision Date: 09 January 1962
• Docket Number: No. C-428,C-428
• Parties: Artis BANKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 25

136 So.2d 25

Artis BANKS, Appellant, v. STATE of Florida, Appellee.

No. C-428.

District Court of Appeal of Florida, First District.

Jan. 9, 1962.

Green & Huff, Palatka, for appellant.

Richard W. Ervin, Atty. Gen., and Joe L. McClung, Asst. Atty. Gen., for appellee.

WIGGINTON, Judge.

This appeal is from a final judgment and sentence imposed on appellant upon his plea of guilty to the charge of aggravated assault. On arraignment defendant entered a plea of not guilty to the information charging him with assault with intent to commit murder. After the jury was empaneled and sworn, a short recess was taken by the court. During this interval appellant's attorney conferred with the Assistant State Attorney as a result of which appellant's plea of not guilty was withdrawn and a plea of guilty to a charge of aggravated assault was entered. Upon reconvening of court defendant's plea was accepted, and a companion case charging him with a similar offense against a different person was nolle prossed. Appellant was adjudged guilty and sentenced to a term of imprisonment in the state penitentiary. It is from this judgment that appeal is taken.

Within three days after judgment and imposition of sentence defendant filed in the cause a motion which prays for an order setting aside the judgment and sentence, permitting him to withdraw his plea of guilty and reinstate his plea of not guilty to the information filed against him. The motion recites facts purporting to show that he withdrew his plea of not guilty and entered a plea of guilty to aggravated assault because of an honest misunderstanding between his attorney and the Assistant State Attorney growing out of the brief conference they had during the recess of the court. The motion states that appellant has a meritorious defense to the charge against him and desires to be tried on his plea of not guilty.

The testimony taken before the court in support of and in opposition to the motion reveals the following situation. The occurrence out of which the charge of assault with intent to commit murder arose was a marital difficulty between appellant, his wife and another man. Appellant's attorney testified that in his conference with the Assistant State Attorney during the recess of the court, the latter offered to accept a plea of guilty to aggravated assault in return for which the companion case then pending against defendant would be nolle prossed. Appellant's counsel understood the Assistant State Attorney to say that he had had a conference with the trial judge regarding the case, and the judge had stated he would accept defendant's plead of guilty to aggravated assault, would order a presentence investigation and that if such investigation revealed that the charged then pending grew out of a marital dispute between the appellant and his wife, and further showed that appellant had no previous record of violence, that defendant would be placed on probation and not sentenced to serve a term in prison. Appellant's attorney admitted that he had conferred with the probation officer some one week prior to trial date and was told by the officer that he would recommend against probation for the reason that appellant did not work regularly and was addicted to gambling. Despite this, appellant's attorney was of the opinion that the probation officer's recommendation would have no bearing on the court's right to place appellant on probation. The attorney further testified that he knew of his own knowledge that the charge against appellant did arise out of a marital difficulty between him and his wife, and that appellant had no previous record of violence. It was not until these assurances were given him by the Assistant State Attorney that appellant's counsel agreed for appellant to withdraw his plea of not guilty and enter a plea of guilty to aggravated assault. The attorney testified that he would never have consented to this arrangement had there been any doubt in his mind that following appellant's plea of guilty, he would be placed on probation and not sentenced to serve a term in prison.

The Assistant State Attorney also testified at the hearing and his recollection of the agreement was consistent with the understanding of appellant's counsel except in one or two material respects. It was his recollection that during the conference he explained that he had no definite commitment from the trial judge with respect to the ultimate disposition which would be made of the case, but it was his understanding that if appellant pleaded guilty to aggravated assault, the court would accept such plea and order a presentence investigation. He testified that he further explained to appellant's counsel that the trial judge had intimated that if the investigation revealed the charge against appellant arose out of a marital difficulty, and that appellant's record was sufficient to stand the scrutiny of the probation officer, that the trial judge would be inclined to place appellant on probation rather than sentence him to serve a term in prison. The Assistant State Attorney denied having given any assurance of probation in the event the investigation showed that defendant had no previous record of violence, as was understood by appellant's counsel. A report of the presentence investigation was before the court but was not placed in the record because of its confidential nature.

At the conclusion of the hearing the trial court denied appellant's motion to set aside the judgment and reinstate his plea of not guilty. It is contended on this appeal that the court's action in denying the motion constituted an abuse of discretion and should be reversed as erroneous.

From a careful examination of the testimony offered by the Assistant State Attorney and counsel for appellant, it is clearly apparent that appellant was persuaded to and did in fact withdraw his...