Brown v. State

• Decision Date: 10 August 1926
• Citation: 92 Fla. 592,109 So. 627
• Parties: BROWN v. STATE.
• Court: Florida Supreme Court

109 So. 627

92 Fla. 592

BROWN v. STATE.

Florida Supreme Court, Division B.

August 10, 1926

Error to Criminal Court of Record, Polk County; H. K. Olliphant Judge.

I. H Brown pleaded guilty of assault with intent to commit first degree murder, and sentence was imposed, and leave to withdraw the plea denied, and he brings error.

Reversed and remanded.

Strum and Ellis, JJ., dissenting in part.

Syllabus by the Court

SYLLABUS

A plea of guilty should be entirely voluntary by one competent to know the consequence of such plea, and should not be induced by fear, misapprehension, persuasion, promises, inadvertence or ignorance.

On motion by defendant to withdraw plea of guilty at term at which it is entered, same rules should be applied and same result obtained whether judgment has been entered or not. Where a motion is made by the defendant to be allowed to withdraw his plea of guilty in the same term of court at which such plea is entered, the same rules should be applied and the same result obtained whether judgment has been entered upon the plea or not, because the court maintains full control of its judgment during the entire term of court and may change, modify, or set it aside upon proper showing being made or for good and sufficient cause.

Plea of guilty to serious criminal charge should be freely and voluntarily made without semblance of coercion and without fear or duress of any kind; accused should be permitted to withdraw plea of guilty entered unadvisedly when application is duly made in good faith and sustained by proof and proper offer is made to go to trial on a plea of not guilty, or other valid plea. The plea of guilty to a serious criminal charge should be freely and voluntarily made and entered by the accused, whihout a semblance of coercion, and without fear or duress of any kind, and the accused should be permitted to withdraw a plea of guilty entered unadvisedly when application therefor is duly made in good faith and sustained by proof, and proper offer is made to go to trial on a plea of not guilty, or other valid plea.

COUNSEL

James M. Carson, of Miami, and Wilson & Boswell, of Bartow, for plaintiff in error.

J. B. Johnson, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.

OPINION

BUFORD J.

In this case the plaintiff in error was charged by information, filed in the criminal court of record of Polk county, with the offense of assault with intent to commit murder in the first degree.

The defendant entered a plea of guilty of the offense of assault with intent to commit manslaughter, which plea was entered on the 28th day of September, 1925, and was sentenced to be confined in the state penitentiary in the state of Florida at hard labor for a period of three years. On the 2d day of October and during the same term of the court and before the court had adjourned for such term, the defendant filed a motion praying for an order of court setting aside the judgment and allowing him to withdraw his plea of guilty and to allow him to enter a plea of not guilty, which motion was in the following language to wit:

'Now comes the defendant and moves the court for permission to withdraw the plea of guilty and entered in this cause on September 28, 1925, and instead to enter a plea of not guilty; and in support of the said motion the defendant says:

'First, that the defendant was induced to plead guilty with assault with intent to commit manslaughter by fear, and that the defendant was and is informed that the prosecuting witness, one Yates, who was shot by the defendant was a member of the Ku Klux Klan, a secret organization whose members, the defendant is informed, are bound by oath not to disclose their membership, to support and sustain each other, and that the defendant was threatened by persons whom he believed to be members of said Klan with a conviction upon the higher offense charged in the information; and that the defendant not being a member thereof and not knowing the membership thereof did believe that there was apt to be several members of the Klan on the jury which might be chosen for the offense charge; and that on account of said fear he pleaded guilty to the lesser offense in the belief hereinafter in full set forth that he would be allowed to pay a fine.

'Second, that defendant was informed before the entry of said plea and still believes that one Pullen, an employee of the same mine in which defendant and the said Yates, the prosecuting witness, were employed, the said Pullen being higher in employ than either one said Yates or the said defendant, was the adviser and counsellor of the said Yates in reference to this cause, and that before the entry of this plea the said Yates, acting, as the defendant believes, by and under the advice of the said Pullen, offered to drop the prosecution in this cause upon the payment of five thousand or more dollars to the said Yates, and that defendant declined to make said payment, but that the defendant was then and is now informed that the said Pullen and one H. K. Olliphant, Jr., are brothers-in-law, and that H. K. Olliphant Jr., is the son of the judge of the court, and that by reason of said family connection and by reason of the refusal of the defendant to pay the money demanded defendant feared that in the event of a trial he might expect the said trial to be presided over by a judge who, to say the least, would not be friendly to this defendant, and for these reasons the plea of guilty of the defendant was induced by fear.

'Third, the defendant further says that the plea of guilty in this cause was induced by an understanding on the part of the defendant has by and through his attorney with the county solicitor of Polk county that upon such plea the defendant would be sentenced to pay a fine rather than to serve a term of imprisonment, and that the amount of said fine was, as the defendant understands, agreed upon, and that the defendant was to pay a fine of $1,000 and costs, and that by reason of the promises and understanding had by and through the county solicitor defendant was overreached and dececived in respect to the extent of punishment, and on account of such understanding defendant pleaded guilty to a charge of assault with intent to commit manslaughter.

'And the defendant further says that he is not guilty of the offense to which he pleaded guilty nor of the offense charged in the indictment, and that he has a meritorious defense in said charge.'

This motion was supported by an affidavit of Lida G. Brown, wife of the defendant, which was in the following language:

'Before me, the undersigned authority, personally appeared Lida G Brown, who being duly sworn says that she is the wife of I. H. Brown; and that she was present in all the consultations between her husband and the attorneys representing him, Wilson & Boswell; and that said attorneys advise I. H. Brown to plead guilty to the charge of assault with intent to commit manslaughter, saying that he was afraid of the jury and certain influences that were surrounding him; and that he would get off much easier by pleading guilty to this charge than he would if he went to trial and should be convicted of the higher offense of assault with intent to commit murder; and while not in so many words but intimated that if the defendant, I. H. Brown, would plead guilty to this charge he would be assigned possibly a very high fine, but nothing was said about the imprisonment without the alternative; and that she did not know that he could be imprisoned...