Caminita v. State, 4138
| Decision Date | 29 January 1964 |
| Docket Number | No. 4138,4138 |
| Citation | 159 So.2d 921 |
| Parties | Roy Vincent CAMINITA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Walter Talley, Public Defender, Bradenton, for appellant.
James W. Kynes, Jr., Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
Petitioner appeals an order denying his motion to vacate judgment and sentence under provisions of Criminal Procedure Rule No. 1, F.S.A. ch. 924 App. After filing his notice of appeal, petitioner was adjudged insolvent and the public defender was appointed to assist in the appeal pursuant to mandate of this court.
The facts disclose that on November 15, 1960, petitioner pleaded guilty in proper person to an information charging the offense of robbery, whereupon he was adjudged guilty and was sentenced to serve a term of six months to twenty years in State Prison.
Petitioner's motion for relief under Criminal Procedure Rule No. 1 was denied on May 17, 1963 and the notice of appeal was filed in proper person. Assignments of error and directions to the clerk were filed by the public defender.
Appellant argues that denial of his motion was summary in nature and was contrary to the law and therefore erroneous. Appellant submits that he was deprived of counsel for his defense, that he did not waive counsel, was not advised of his right to counsel and was deprived of right to trial by jury. An affidavit appended to the motion asserts that appellant was insolvent at the time of the arraignment and that he had no way to retain the assistance of counsel. The circuit court answered petitioner by mail informing him that his petition was denied and then entered the order which reads in pertinent part:
'* * * it appearing to the Court * * * that investigation reveals that Petitioner was advised of his rights of a trial by jury and waived such right, that Petitioner was advised of his right to representation by counsel and waived such right, that at the time Petitioner had sufficient intelligence to comprehend the nature of the case against him, it sseriousness and the consequences of a plea of guilty, that in as much as Petitioner's case was disposed of on a plea of guilty the case referred to, Gideon v. Wainwright, [372 U.S. 335, 83 S.C.t. 792, 9 L.Ed.2d 799] is not applicable to his case * * *' (emphasis added)
Appellant argues that, notwithstanding the purported findings of circuit court, the record does not reveal that he waived his rights. Appellant cites King v. State, Fla.App.1963, 157 So.2d 440 as authority for his position that he is entitled to a genuine hearing. The State attempts to distinguish the cases by pointing out that in the King case the court made no findings of fact but merely recited:
"* * * after examining the files and records of this cause, and it appearing unto the Court that the defendant is legally imprisoned, it is, therefore, ORDERED and ADJUDGED that the defendant's Motion for relief is herein and hereby denied." (emphasis supplied)
In the King case this court predicated its ruling upon the files and records in the cause, which files and records failed to show affirmatively that the defendant was not prejudiced. In the instant case the trial court made specific findings of fact and then denied the relief sought. In neither case, however, was it made to appear that the court granted a hearing, nor do the records of the cases affirmatively disclose the bases for the findings.
In the instant case petitioner prayed that the court set a date for hearing on the issues. The record, as previously noted, fails to disclose that any hearing was had. Recent opinions in the Florida jurisdiction indicate that petitions under Criminal Procedure Rule No. 1, which meet legal requirements, should be set for hearing on the issues presented and notice given the petitioner. See and compare Mullins v. State, Fla.App.1963, 157 So.2d 701; King v. State, Fla.App.1963, 157 So.2d 440; Keur v. State, Fla.App.1963, 160 So.2d 546.
In the Keur case, supra, this court, speaking through chief Judge Smith, held:
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Phillips v. State, 4599
...the plenary hearing on which the trial court concluded that the insolvent prisoner was entitled to no relief. See e. g. Caminita v. State, Fla.App.1964, 159 So.2d 921; Williams v. State, 163 So.2d 767, Second District Court of Appeal, Case No. 4428, opinion filed May 13, 1964. As stated pre......
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Tynes v. State
...the issues and make findings of fact and conclusions of law. See Branch v. State, Fla.App.1964, 162 So.2d 528 and Caminata v. State, Fla.App.1964, 159 So.2d 921, and cases cited Accordingly, the matter should be set down and the provisions of the rule complied with in respect to a subsequen......
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Armstrong v. State, 4591
...161 So.2d 547. But see Phillips v. State, Fla.App., 164 So.2d 858; Williams v. State, Fla.App., 163 So.2d 767; and Caminita v. State, Fla.App.1964, 159 So.2d 921. Since the motion is plainly insufficient, the trial judge's order must be affirmed for the reasons stated in Dias v. State, Fla.......
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Turner v. State
...Fla.App.1963, 157 So.2d 440; Mullins v. State, Fla.App.1963, 157 So.2d 701; Keur v. State, Fla.App.1963, 160 So.2d 546; Caminita v. State, Fla.App.1964, 159 So.2d 921. ALLEN, Acting C. J., and SHANNON and WHITE, JJ., concur. ...