Blake v. State of Florida

• Decision Date: 22 May 1968
• Docket Number: No. 25326.,25326.
• Citation: 395 F.2d 758
• Parties: John Joseph BLAKE, Appellant, v. STATE OF FLORIDA et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

395 F.2d 758 (1968)

John Joseph BLAKE, Appellant, v. STATE OF FLORIDA et al., Appellees.

No. 25326.

United States Court of Appeals Fifth Circuit.

May 22, 1968.

Gaines C. Granade, Atlanta, Ga., for appellant.

Arden M. Siegendorf, Harold Mendelow, Asst. Attys. Gen., Miami, Fla., for appellees.

Before GEWIN and THORNBERRY, Circuit Judges, and ELLIOTT, District Judge.

PER CURIAM:

The appellant complains of the following order of the United States District Court for the Southern District of Florida, 272 F.Supp. 557, denying relief sought in his petition "in the nature of coram nobis".

"Petitioner is presently confined in the United States Penitentiary in Atlanta, Georgia. Petitioner does not identify the federal court that sentenced him, but he was not sentenced by the United States District Court for the Southern District of Florida.

"Prior to his federal court conviction, petitioner was sentenced by the Criminal Court of Record, Dade County, Florida, in one case for assault with intent to commit murder and in a second case for aggravated assault. He alleges that the plea of guilty in the first case was involuntary, having been entered on the threat of recommitment to a mental hospital, and that the sentence and imprisonment of three years in the second case was imposed without trial or plea to the charge.

"While he was still in state custody, petitioner sought habeas corpus relief on these same grounds in the state courts. In January of 1965 the District Court of Appeal of Florida, Third District, reversed the denial of a petition for collateral relief, and remanded the cause for a hearing. Blake v. State, 171 So.2d 207 (3d Dist. Fla. 1965). The record before this court reveals no hearing pursuant to that mandate, and petitioner alleges that there was none.

"Petitioner, through his attorneys, has now filed in this court a `petition for a writ of error coram nobis.\' He says he is entitled to relief because the records in these prior state causes impinge upon proper consideration of a parole from his present confinement, and because a more severe sentence than would otherwise have been given was imposed upon him by the federal judge because of his state convictions.

"The literal meaning ascribed to the writ of error coram nobis at common law is `let the record remain before us\' (quae coram nobis resident). Its function was to permit a court to review its own judgment because of an alleged error of fact which did not appear on the face of the record.¹

"Rule 60(b), Federal Rules of Civil Procedure, and Rule 1.540(b), Florida Rules of Civil Procedure, 30 F.S.A., provide that writs of coram nobis are abolished. However, in both jurisdictions the substance of the remedy remains available by way of motion. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Tolar v. State, 196 So.2d 1, 4 (4th Dist. Fla. 1967); 17 U.Miami L.Rev. 276, 290 (1963).

"Post-conviction motions for relief collaterally attacking judgments and sentences under Florida\'s Criminal Procedure Rule No. 1, F.S.A. Ch. 924 Appendix are basically in the nature of writs of error coram nobis. Id. at 3. Thus the petitioner\'s remedy, assuming he is entitled to one, may lie via a motion under Rule 1, or a motion for relief in the nature of coram nobis, filed with the Criminal Court of Record of Dade County, Florida, which imposed the sentences he seeks to vacate. Or, since `in every practical sense his grievance is over what * * * the federal court which sentenced him to his present confinement is doing

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