Brown v. Wainwright, 25325.

Decision Date01 May 1968
Docket NumberNo. 25325.,25325.
PartiesJames Donald BROWN, Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

James Donald Brown, pro se.

David U. Tumin, Asst. Atty. Gen., Tallahassee, Fla., for appellee.

Before GODBOLD and SIMPSON, Circuit Judges, and McRAE, District Judge.

GODBOLD, Circuit Judge:

This appeal is from a denial of habeas corpus without an evidentiary hearing. The district court denied a hearing on the ground that the face of the petition showed all allegations to be without merit. The district court held appellant had exhausted his state remedies.1

At appellant's trial the jury was present when the trial judge heard the evidence on the issue of voluntariness of an incriminating statement, which it is contended does not meet the standards of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Florida follows the rule which requires this determination be made by the trial judge and not the jury. Bates v. State, 78 Fla. 672, 84 So. 373 (1919); Brown v. State, 181 So.2d 578 (Fla.App.1965). Since the judge, having heard the evidence, determined the statement was voluntary and admissible no prejudice resulted from the jury's also being present.

We are of the opinion that the allegations that illegal and false testimony was used, that the verdict was contrary to the great weight of the evidence, and hearsay evidence was admitted, do not require an evidentiary hearing, but that the other asserted grounds for relief are sufficiently stated to require an evidentiary hearing thereon.

On the issue of voluntariness the trial was prior to Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but after Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); hence Miranda standards are not applicable except as part of the overall circumstances of determining voluntariness. Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

Reversed and remanded for further proceedings not inconsistent with this opinion.

1 The district court found "the face of the petition itself shows that petitioner exhausted his state remedies." The state attacks this conclusion on appeal, relying on Key v. Holman, 346 F.2d 153 (5th Cir. 1965). It contends appellant failed to appeal the denial of his petition filed pursuant to Fla.R.Crim.P. 1.850 (formerly Crim.Proc. Rule 1), 33 F.S.A. The record now before us reveals appellant's petition of March 24, 1967 was denied by the Circuit Court for ...

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6 cases
  • Wynn v. Smith
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 12 Julio 1971
    ...that question (see Tarlton v. United States, 429 F.2d 1297 (C. A.5 1970); Burton v. Alabama, 396 F.2d 755 (C.A.5 1968); Brown v. Wainright, 394 F.2d 153 (C.A.5 1968) cert. denied, 393 U.S. 1101, 89 S.Ct. 899, 21 L.Ed.2d 793 (1969); Baker v. Lee, 384 F.2d 703 (C.A.5 1967)) because the facts ......
  • United States ex rel. Montgomery v. Brierley, 17105.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 6 Agosto 1969
    ...court to conduct an evidentiary hearing on the question of whether appellant has exhausted his state remedies. See Brown v. Wainwright, 394 F.2d 153, 154 n. 1 (5th Cir.1968).9 If the district court should find that appellant's state habeas corpus petitions did raise all of the claims he now......
  • Taylor v. State
    • United States
    • Alabama Supreme Court
    • 15 Agosto 1968
    ...908, as construed and applied in Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593.--Duncan v. State, supra; Brown v. Wainwright, 394 F.2d 153, decided by the United States Circuit Court of Appeals for the Fifth Circuit on May 1, Mindful of our duty in cases of this chara......
  • Montgomery v. Caldwell, 72-1567.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 24 Marzo 1972
    ...makes have not yet been fully considered by the state courts, and are thus not reviewable in the federal habeas forum. Brown v. Wainwright, 394 F.2d 153 (5th Cir. 1968). Those should be dismissed without prejudice to the petitioner's right to return to the federal court after he has exhaust......
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