Crusoe v. State

Decision Date23 February 1966
Docket NumberNo. 6436,6436
PartiesHubert Robert CRUSOE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Hubert Robert Crusoe, in pro. per.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

This is an appeal taken by Appellant (defendant) Hubert Robert Crusoe, from an Order denying, without a hearing, a motion filed by defendant in the Criminal Court of Record for Polk County for relief under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.

The certified Transcript of Record discloses that on June 5, 1964 defendant was sentenced in said Criminal Court to serve five years in the State Prison on each of four Informations charging separate offenses of uttering forged bank checks. These informations bore respectively Criminal Court Nos. 91070, 91071, 91072 and 92172. Sentences under No. 91070 and No. 91072 were to run consecutively, while the sentences under Nos. 91071 and 92172 were to run concurrently with the first two sentences respectively; thus making a total term of servitude of ten years in the State Prison.

The 'motion' of defendant, filed on June 9, 1964, was in the usual crude, ungrammatical, disjointed, muddled, misspelled, confused and generally irresponsible pattern of similar handwritten, assembly-line, documents that have been figuratively spewing from the State Correctional Institutions since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. 1

Translated into as reasonably coherent language as the contents will permit, the facts therein alleged may be collated as follows:

'Two of the forged checks were not cashed; a third check in the sum of $25 was cashed; he was not charged with forgery in any of the cases; he had no recollection of committing the offenses on May 1, 1964, because he was drunk at the time; he was arrested on May 1, 1964, about 9 o'clock P.M., by an officer who failed to inform him of his right to remain silent and to have counsel; he was held in jail until about noon on May 4, 1964, during which time he was questioned, harassed and intimidated into giving incriminating evidence against himself; no Court hearing was given him until May 11, 1964, when he was arraigned in the trial Court without counsel charged with uttering forged instruments; that he came to Court again on June 5, 1964, at which time he was unable to properly plead his case or present competent defence due to the mental effects of alcoholism; his lawyer gave him no assistance, but acted rather like a second prosecutor; that when he was sentenced on June 5, 1964, the Court was unaware that he was judicially incompetent and was influenced against him by his past sentences; that his counsel failed to inform the Court of his past history of incompetency.'

The foregoing is a fair, although somewhat refined, narrative of the 'facts' in defendant's motion. The allegations are replete with generalities and conclusions and indicate a clear resemblance to the rather stereotyped form of such motions which started flowing upon the advent of Gideon.

A movant for post-conviction relief must allege factual elements sufficient to constitute a basis for the collateral relief sought, otherwise the motion is deficient. State v. Weeks, Fla.1964, 166 So.2d 892; Dias v. State, Fla.App.1963, 158 So.2d 766. This is not to say that such motion should be scrutinized for technical niceties, quite the reverse; 2 but at the same time, facts and not conclusions or

suppositions must be set forth. Austin v. State, Fla.App.1964, 160 So.2d 730; Hale v. State, Fla.App.1964, 162 So.2d 5; Dykes v. State, Fla.App.1964, 162 So.2d 675. As to the allegations in the motion covering the period prior to June 5, 1964, the date of the hearing, no semblance of detail is given as to how or in what manner defendant was intimidated or harassed, or what evidence he gave; whether any witnesses ever in fact identified him or how he was unable to properly 'plead his case', or why he was unable to present a competent defense

It is immaterial that two of the forged instruments were not cashed. He was charged with uttering and such offense is not dependent upon the actual passing of the forged instruments, the essence being the intent to defraud another regardless of successful consummation. Hazen v. Mayo, Fla.1956, 90 So.2d 123; Clark v. State, Fla.App.1959, 114 So.2d 197, 80 A.L.R.2d 261. He does admit cashing the $25 check involved in case No. 91071, but makes no mention of the two checks involved in Case No. 92172.

The allegation that he had 'no recollection' of committing the offenses on May 1, 1964, because he was 'drunk at the time' is deficient because (a) he did not say he was too intoxicated to entertain the requisite intent to defraud, Britts v. State, 1947, 158 Fla. 839, 30 So.2d 363, or (b) that he did not become voluntarily intoxicated for the purpose of carrying out the intentions to defraud, Garner v. State, Fla.1891, 28 Fla. 113, 9 So. 835, or (c) that such intoxication produced a mental condition equivalent to insanity, Askew v. State, Fla.1960, 118 So.2d 219. The quoted allegation is palpably not equivalent to 'having no intent to defraud.' Also one of the offenses was alleged to have occurred on May 2, 1964, not May 1, 1964, as to which former date defendant's 'recollection' might have been quite vivid. And the State is not bound by the exact date specified in the criminal information as to the commission of the crime, at least in the absence of an ordered Bill of Particulars, and so long as it is within the Statute of Limitations. Skipper v. State, Fla.1934, 114 Fla. 312, 153 So. 853; Morgan v. State, Fla.1906, 51 Fla. 76, 40 So. 828; Thorp v. Smith, Fla.1912, 64 Fla. 154, 59 So. 193.

But aside from all technical deficiencies, such allegations raise only questions of procedural errors or concern matters which were available to be raised by defendant upon a trial of the merits, with the ensuing right of direct appeal from any adverse rulings or verdict, but which cannot be raised on collateral attack by a motion under Criminal Procedure Rule No. 1. Harper v. State, Fla.App.1964, 168 So.2d 325; Piehl v. State, Fla.App.1965, 173 So.2d 723; Wilcox v . State, Fla.App.1965, 171 So.2d 427; Taylor v. State, Fla.App.1965, 171 So.2d 402; Mason v. State, Fla.App.1964, 167 So.2d 618; Harris v . State, Fla.App.1964, 167 So.2d 312; Mitchell v. State, Fla.App.1964, 167 So.2d 27.

As to that quoted portion of the motion dealing with Court proceedings on June 5, 1964, such allegations either have no factual basis or are refuted by the certified record here.

The record shows that all four informations were filed on May 26, 1964, so patently there was no Court hearing on May 11, 1964, for arraignment or otherwise. It does appear that between the date the informations were filed and when the cases were disposed of on June 5, 1964, the defendant had entered a plea of not guilty to each information, and obviously he could not complain of that Court appearance because he was not harmed. Prior to June, 5, 1964, defendant had been adjudged an indigent by the Court and the State Public Defender, Lee Roy Horton, Jr., had been appointed to represent him. On June 5, 1964, defendant appeared in Court with his appointed attorney, and a separate judgment

and sentence was imposed on each of the foregoing informations, resulting in the cumulative sentences aforesaid. The judgment and sentence in case No. 91070 is typical of the others, and in its salient parts is as follows





NO. 91070


'The above entitled cause coming on this day for final hearing, pursuant to the Defendant having been declared indigent by the Court and State Public Defender, Lee Roy Horton, Jr., having been appointed for said Defendant, the Defendant appears before the Court with Lee Roy Horton, Jr., State Public Defender, withdraws the plea of 'not guilty' which was previously entered herein and freely and voluntarily pleads guilty to the Information filed in said cause, and being asked by the Court if he had anything to say why the sentence of the law should not be passed upon him, offers nothing in bar thereto.

'THEREFORE, the Court adjudges you * * *'. (and then follows the adjudication of guilt and the sentence imposed).

From the above judgment, the following facts appear of record:

(1) Defendant had been adjudged an indigent;

(2) The Court had appointed the State Public Defender, Lee Roy Horton, Jr., to represent the defendant;

(3) Defendant changed his previous plea of not guilty to a plea of guilty;

(4) Such change of plea of guilty was voluntarily made by defendant;

(5) The defendant offered 'nothing in bar' to imposition of sentence; and

(6) The defendant was represented in...

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    ...been so infected with constitutional vices as to leave the judgment or sentence without basis of validity. As was said in Crusoe v. State, Fla.App.1966,183 So.2d 600: '(t)he post-conviction relief rule is available only when (a) the judgment was rendered without jurisdiction, or (b) the sen......
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