La Barbera v. State
| Decision Date | 13 March 1953 |
| Citation | 63 So.2d 654 |
| Parties | LA BARBERA v. STATE. |
| Court | Florida Supreme Court |
Mario N. Herce, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen., for appellee.
The appellant appealed from the judgment of guilt, and the sentence imposed upon him, following his plea of guilty to an information charging him and another person with possession of burglary tools and with breaking and entering while entertaining the intent to commit grand larceny.
In reality the first attack is directed at the order of the court denying the motion to set aside the plea of guilty on the grounds that the appellant would be prejudiced by his criminal record; that he was handicapped by being jointly charged with a known criminal; and that his then attorney was so able that appellant assumed he would, by following the attorney's advice, receive a lighter sentence.
We do not find in these reasons any indication that the appellant was the victim of apprehension, surprise, hope, persuasion, fear, ignorance or any other element or circumstance that would have justified the judge in setting aside the plea.
The appellant leans heavily upon the decision of this court in Artigas v. State, 140 Fla. 671, 192 So. 795, but we do not find such similarity in the two cases as would make the rule announced in one govern the decision in the other. The vital distinction between the two is the formality of the presentation. In the cited case the petition contaning grounds that appealed to three members of the court was verified; in the present case the motion was neither verified nor signed by the defendant. It was signed only by his counsel.
The matter of permitting the withdrawal of the plea was purely discretionary. Section 909.13, Florida Statutes 1951, and F.S.A. Considering the weak foundation of the motion and the ineffective manner in which it was offered, we can conclude only that the judge was well within the bounds of his discretion when he declined to vacate the plea.
The second assault is aimed at the term of sentence imposed which the appellant insists was excessive. There is no claim that it was more than the judge was authorized to pronounce under the statute dealing with the offense charged, but only that it was disproportionate to the appellant's just desserts.
This question has long since been answered contrary to appellant's contention, but it may be wise to refer to three of our decisions on...
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Turner v. Wainwright
...term "pursuant to authority given the Pardon Board under Section 12, Article IV of the Constitution . . . ." See also La Barbera v. State, 63 So.2d 654 (Fla.1953); Clark, op. cit. supra fn. 7, 11 U.Fla.L.Rev. at 69. But in 1954 the Supreme Court drew a sharp distinction between a 1935 "paro......
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Stanford v. State
...the only remedy for an excessive sentence was by petition to the Pardon Board. See also Walker v. State, Fla., 44 So.2d 814; La Barbera v. State, Fla., 63 So.2d 654; Emmett v. State, Fla., 89 So.2d 659; and Hutley v. State, Fla., 94 So.2d 815, wherein the Brown case was affirmed. While the ......
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Tilghman v. Culver
...the maximum allowed by statute. e.g. Hutley v. State, Fla.1957, 94 So.2d 815; Emmett v. State, Fla.1956, 89 So.2d 659; LaBarbera v. State, Fla.1953, 63 So.2d 654; Walker v. State, Fla.1950, 44 So.2d 814. Even if the relevant statements of the trial judge and his pattern of sentencing are ig......
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Neering v. State, s. 31865
...was through the pardoning board. The Brown case has been reaffirmed in Walker v. State, Fla.1950, 44 So.2d 814; La Barbera v. State, Fla.1953, 63 So.2d 654; Emmett v. State, Fla.1956, 89 So.2d 659; Hutley v. State, Fla.1957, 94 So.2d 815, and Sanford v. State, Fla.1959, 110 So.2d 1. See als......