Brown v. State

• Decision Date: 10 February 1971
• Docket Number: No. 39671,39671
• Citation: 245 So.2d 41
• Parties: Clifford Harry BROWN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 41

245 So.2d 41

Clifford Harry BROWN, Petitioner, v. STATE of Florida, Respondent.

No. 39671.

Supreme Court of Florida.

Feb. 10, 1971.

Richard M. Gale, Miami, Rocco DeStefano, Hollywood, and Anthony Capodilupo, Miami, for petitioner.

Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for respondent.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 234 So.2d 161. The decision sought to be reviewed conflicts with Banks v. State, 136 So.2d 25 (Fla.App.1st 1962), giving this Court jurisdiction of the cause under the provisions of § 4, Article V of the Florida Constitution, F.S.A.

Petitioner, a twenty-year old college student, was convicted on a plea of guilty to illegal possession of marijuana. After a presentence investigation, during which the trial judge learned that petitioner had brought marijuana to the party in quantities larger than he would require for his own use and that he did sell at least one marijuana cigarette, the trial judge sentenced him to 3 years in prison. Thereafter, petitioner filed a motion to set aside the judgment to permit him to change his plea from 'guilty' to 'not guilty.'

A hearing was held on petitioner's motion to set aside his plea of guilty. The basis of that motion was that petitioner was misled into pleading guilty to the offense by representations made by the Court to counsel for petitioner in chambers and outside of petitioner's presence, which representations were then related to petitioner. As a result of petitioner's counsel's meeting with the judge and the prosecutor, petitioner was advised to change his plea of not guilty to guilty.

The trial court entered an order setting forth the facts and denying petitioner's motion to withdraw his plea of guilty, stating in part as follows:

'The court is of the opinion that this is simply a case where once having obtained from the court a statement as to the attitude of the court relating to varying types of possession of marijuana cases, counsel for the defendant misjudged the category into which the defendant's case would fall, either because of the failure to make adequate inquiry into the facts of the case or because of the failure of the defendant to take his counsel into his confidence and divulge important facts to them, and governed their advice to the defendant as to his plea accordingly. It is worthy of note that neither the defendant nor either of his counsel claim that there was every any commitment by the court to place the defendant on probation--only that after discussing this type of case generally with the court they concluded that his case would be one which most likely would warrant probation. Either they misconstrued the attitude of the court or they did not fully understand the circumstances of the case, which could be and were revealed to the court in the course of the pre-sentence investigation which in fact showed not only possession of a quantity of possession (sic) indicative of a purpose for resale, but also that the defendant did, in fact, make some sales at the scene of his arrest although he was not charged with this.'

On appeal, the District Court affirmed Judge Owen dissenting, and held: ¹

'The record does not reveal any promise or agreement by the court and no promise or agreement by the prosecutor other than that of the recommendation which was fulfilled. To the contrary it affirmatively appears that defendant and his counsel were specifically cautioned by the prosecutor that the court was not bound by the prosecutor's recommendation. Further, the defendant specifically disclaimed in open court that he had been given any promises and acknowledged his understanding that the court was not bound by the prosecutor's recommendation. Surely every defendant who pleads guilty hopes that the court will be lenient and that his sentence will be less than what he might have expected had he gone to trial. However, the disappointment of such hopes should not be entertained as a basis for disallowing the guilty plea.'

In Banks v. State, supra, the defendant sought to withdraw his plea of guilty to the charge of aggravated assault. The trial court denied defendant's motion to set aside the judgment and the District Court of Appeal reversed and remanded, holding: ²

'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 plea of not guilty to the charge against him, and entered his plea of guilty to aggravated assault entirely as a result of an honest mistake, misunderstanding or misapprehension which occurred between his counsel and the Assistant State Attorney. From the evidence it appears without any serious question that appellant would not have changed his plea of not guilty to that of guilty except for the understanding of his attorney, erroneously as it may have been, that under the circumstances in the case defendant would be placed on probation and not sentenced to serve a term of imprisonment. The record does not reveal the slightest indication of trickery, fraud or overreaching on the part of either of the attorneys in the case. It is equally clear that the trial judge made no previous commitment...