Davis v. State

Citation277 So.2d 300
Decision Date19 April 1973
Docket NumberNo. 72--376,72--376
PartiesEarl George DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

James A. Gardner, Public Defender, and Elliott C. Metcalfe, Jr., Asst. Public Defender, Bradenton, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., Tampa, for appellee.

LILES, Judge.

Earl George Davis, Jr., took center stage in the Polk County Criminal Court of Record on May 4, 1970, when the county solicitor filed an information charging him with one count of robbery in violation of F.S. § 813.011, F.S.A., and another count of extortion in violation of F.S. § 836.05, F.S.A. Before that case could be disposed of it again became necessary for the county solicitor to file another information against Earl George 'Buster' Davis, Jr charging him, along with three other Polk County residents, with breaking and entering in one count in violation of F.S. § 810.05, F.S.A., and in another count of petit larceny in violation of F.S. § 811.021, F.S.A.

On September 9, 1973, Earl George Davis, Jr., now known as 'Buster,' represented by the public defender, Lee R. Horton, appeared before the Honorable Roy H. Amidon. He attempted at that time to plead guilty to the charge of breaking and entering and petit larceny. After establishing Buster to be 20 years of age, the judge made sure that his father, whom he obviously knew personally, had been notified of the hearing. The judge then proceeded to establish beyond any shadow of doubt, as revealed by the record, that Buster was freely and voluntarily pleading guilty; that nothing had been promised him; that he could be tried by a jury and that Mr. Horton would represent him; and he almost begged him not to plead guilty. This, of course, was not to be. Buster said that he was pleading guilty because he was, in fact, guilty. At the conclusion of the hearing, Judge Amidon withheld adjudication and referred him for presentence investigation.

You will recall that the same Buster Davis was informed against back in May 4, 1970, and charged with robbery and extortion. Exactly why the breaking and entering and petit larceny charge made on August 25, 1970, was heard before the robbery and extortion charge, which was filed on May 4, 1973, is not clear from the record. Be that as it may, on November 3, 1970, the same Buster Davis appeared before the Honorable Roy H. Amidon to answer for the robbery and extortion. This time Buster had acquired the services of one of the most capable criminal lawyers in Florida, Jack T. Edmund, Esq. Mr. Edmund informed the court that Buster's mother was present, and from the record she was apprised of the circumstances. In any event, Mr. Edmund advised the court that Buster wished to plead guilty, using the name of Earl George Davis, Jr. Mr. Edmund further advised the court that he recommended Buster plead guilty after reviewing the case. Buster was in the company of one of his accomplices who was before the court at this time. The court was not willing to take Mr. Edmund's representation at face value and began to question both Buster and his accomplices. He advised Buster of the charges and cited the information charging that Buster, on March 22, 1973, unlawfully by force and violence, did feloniously rob, steal and take away from the person or custody of Claude Benton Sutton money or other property, to-wit: money in currency and coin of the United States of the value of $42, the property of Claude Benton Sutton, with intent permanently to deprive the true owner of his property, in violation of F.S. § 813.011, F.S.A. In common parlance this is known as armed robbery. The judge proceeded laboriously to tell Buster what his sentence could be in the event he was guilty, i.e., life in prison. He asked Buster if he understood that and Buster indicated that he did. He then explained in great detail that Buster was also charged in the second offense with verbally and maliciously threatening to injure Claude Benton Sutton in the event that Sutton should tell anybody that he had robbed him. Only he put it in legal lingo and concluded by asking, 'Do you understand that'; to which Buster said, 'Yes, sir.' The judge then told him that the sentence carried a maximum of 20 years in the event he was guilty and that two charges together could constitute life plus 20 years and indicated it would be rather difficult to serve both sentences. He then told Buster that he had the right to be tried by jury. He advised him that the well-known and capable Mr. Edmund would represent him and he would be tried by a jury of his peers. Bear in mind that his mother was present during the entire proceeding.

He admonished Buster that nothing had been promised him and asked him again whether he freely and voluntarily plead guilty, with the full realization of all the consequences. Again Buster said, 'I wish to plead guilty and that I understand the consequences. Judge Amidon withheld adjudication and referred him to presentence investigation.

On December 14, 1970, Buster appeared before Judge Amidon for sentencing. He was again represented by Jack T. Edmund, Esq. Judge Amidon informed Buster that in Case No. 70--6614 he was charged with robbery and extortion; and that he had, on November 3, 1970, pleaded guilty and was referred for presentence investigation, and that he now adjudicated him guilty of this offense. The judge related that in Case No. 48--107 Buster pleaded guilty to the charge of breaking and entering and he had been placed on probation on the 18th day of November, 1968 for a period of five years; that there was an affidavit for violation of probation filed in February, 1969, and that he was brought in on that affidavit and the affidavit had been set aside and he was again placed on probation. At the sentencing, another affidavit had been filed charging Buster with violation of probation; and the judge further stated that, 'as to the case of robbery and extortion, as I say, the Court adjudges you to be guilty of that and do you have anything to say why sentence should not be imposed upon you at this time?' Buster said he did not. The judge went on to explain to him Again that he was sentencing him on the charge of robbery and extortion, Case No. 70--6614, to serve ten years; and in the case of breaking and entering, Case No. 48--107, he would sentence him to three years and 'let it run concurrently with the 10 years.' In the other one, where Buster was charged with breaking and entering and petit larceny, he said he would 'sentence him on that to five years to run all of them together to get rod (sic) of it so you can have it all behind you.'

The record reveals at page 22 that Judge Amidon signed the judgment and sentence in the case of robbery and extortion and it reads:

'THEREFORE, the Court adjudges you to be guilty of said offenses, and sentences you, for your said offense as to Count One, to be confined in the State Prison of Florida at hard labor for a term of Ten (10) Years; and for your said offense as to Count Two, to be confined in the State Prison of Florida at hard labor for a term of One (1) Year, said sentence to run concurrently with Count One, and to be given credit for One Hundred and Twenty-One (121) Days spent in the County Jail awaiting sentence.'

The record also reveals at page 23 that Judge Amidon entered judgment and sentence on the charge of breaking and entering with intent to commit a misdemeanor and petit larceny, to which Buster had previously pleaded guilty. The order said in part:

'THEREFORE, the Court adjudges you to be guilty of said offenses, and sentences you to be confined in the State Prison of Florida at hard labor for a term of Five (5) Years, and said sentence to run concurrently with Case Number 70--6614, as to Count One; and for your offense as to Count Two, be confined in the County Jail of Polk County, Florida at hard labor for a term of Six (6) Months, said sentence to run concurrently with case number 70--6614.'

Insofar as we know, Buster has been in Raiford since he was transported there subsequent to December 14, 1970. This is April, 1970, and he still does not have this case behind him as Judge Amidon admonished him to do. Or to put it more bluntly, he still wishes this court not to believe that he freely and voluntarily admitted in the presence of the public defender in one case and private counsel in the other that he really did commit these crimes.

Florida Appellate Rules require, and have for some time, that a direct appeal must be brought in the form of a 'notice of appeal' and the same should be done within 30 days after entry of sentence. See, F.A.R. 6.2, 32 F.S.A. This, of course, was not done within 30 days of December 14, 1970, even though Buster was represented by competent, capable and outstanding criminal counsel. We can see, after reviewing this entire record, why Mr. Edmund did not take an appeal. He had investigated the case along with his associate. He had talked with Buster as well as with his mother and had concluded that he had no defense and having no defense he had nothing to appeal. However, he obviously had not read Baggett v. Wainwright, 229 So.2d 239 (Fla.1969); nor did he foresee that this court would expect the trial judge, after a thorough determination of the voluntariness of the plea, to nevertheless inform Buster that he had a right to appeal. See, Baker v. State, 224 So.2d 331 (1st D.C.A.Fla.1969).

Baggett v. Wainwright, Supra, does violence to the rule, requiring a 'notice of appeal' to be filed within 30 days, but that is understandable. It was written for Baggett. It has been applied to this case. Baggett was tried by a jury; he did not plead guilty as did Buster; Baggett was represented by privately employed counsel, but was unable to retain counsel for purposes of appeal. Baggett was informed that an attorney would be...

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