Echols v. State

• Decision Date: 07 July 1967
• Docket Number: No. 6877,6877
• Citation: 201 So.2d 89
• Parties: James M. ECHOLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 89

201 So.2d 89

James M. ECHOLS, Appellant, v. STATE of Florida, Appellee.

No. 6877.

District Court of Appeal of Florida, Second District.

July 7, 1967.

John D. Goff of Branch & Goff, Tampa, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

DRIVER, B. J., Associate Judge.

Appellant, James M. Echols, hereinafter referred to Defendant, was convicted of the crime of being a felon in possession of firearms, and appeals the judgment and sentence of guilty.

This is the third conviction for the defendant and since each separate conviction is material to the issues raised by his appeal, each will be briefly reviewed.

Defendant's first conviction was in 1960 in Hillsborough County for the crime of robbery. He was sentenced to seven years in the State Prison on this conviction. In 1963 defendant was again convicted in Hillsborough County, this time for the crime of a felon being in possession of firearms. The felony upon which the 1963 charge of felonious possession of firearms was based was the 1960 conviction of robbery. Defendant was again sentenced to the State Prison on this second conviction. Defendant's third and latest conviction, out of which this appeal arises, occurred in Hillsborough County in 1965 where defendant was initially arrested on a vagrancy charge but upon being searched a revolver and an ice pick were found on his person and he was also charged with being a felon in possession of firearms. The felony upon which this last charge was based was the 1963 conviction for felonious possession of firearms. Defendant was tried before the Court sitting without a jury and found guilty as charged.

Prior to trial defendant moved to suppress as evidence the revolver found on defendant's person at the time of his arrest, alleging that his arrest was illegal because it was done without benefit of a warrant and for a misdemeanor not committed in the arresting officer's presence. This motion was denied. Subsequent to denial of the motion to suppress defendant filed a motion which he styled 'Motion to Dismiss Information and to Open Up, Vacate, and Set Aside Judgments, Convictions, and Sentences, and to Discharge Defendant.' This latter motion sought to set aside defendant's first two convictions upon which his then pending charge was predicated.

Consideration will first be given to the ruling by the trial court on the defendant's Motion to Suppress. Defendant was arrested at about 9:30 P.M. by officers of the City of Tampa. These officers had just before the arrest received a call that a 'prowler' had been seen in the 400 block of South Melville Street in Tampa. The description of the prowler, which the policemen had, in general fit the defendant. In answer to the prowler call the officers proceeded to the area and observed the defendant, who, according to the testimony, appeared to be trying to walk in the shadows cast by the buildings. The officer stopped the patrol car, at which time the defendant began to walk away and upon being stopped by the officers gave his name but refused to divulge his address and stated at the time that he was enroute to California looking for work. Based upon this, together with their knowledge that in the same area there had been numerous calls previously as to prowlers, the officers arrested the defendant, charging him with vagrancy and thereafter searched him, at which time the revolver and ice pick were found on his person. Defendant was convicted in the Municipal Court of Tampa on the charge of vagrancy for which he was arrested.

Defendant, in his Motion to Suppress and now in his briefs, contends that there was not probable cause to arrest him without a warrant since no misdemeanor had been committed in the officers' presence.

It is to be conceded that this construction of the evidence can be indulged in when viewed from defendant's perspective. It is equally true, however, that the evidence may also be construed to justify the arrest. The weight and sufficiency of the evidence and the credibility of witnesses was a matter to be tried by the trial court. That court had all of the witnesses before it, heard their testimony and having applied the criteria that a trier of fact is required to utilize in evaluating testimony and evidence, it would be not only improper but presumptive of this Court to arbitrarily, months later and in a different place, substitute its judgment for that of the trial judge to whom the evidence was submitted. Even if we were so inclined, we would be precluded from doing so by the binding precedents of the law of this state. An opinion of this Court makes it abundantly clear that it is solely within the trial court's province to determine if the arrest of a defendant was legal when there is a conflict in the testimony as to whether or not the arrest of an accused was validly made. Diaz v. State, Fla.App., 181 So.2d 351. That opinion quoted with approval the language of the 'late and learned' Judge Jack F. White, a judge of this Court, where in Urso v. State, Fla.App.1961, 134 So.2d 810, Judge White declared:

'The question of whether an arrest is valid so as to support an incidental search is a mixed question of law and fact to be determined advisedly by the court. It is analogous to the question of 'probable cause' in relation to search warrants.'

This is not to say that an appellate court ought not to consider whether or not there is Any evidence to justify an arrest, but if there be Any, then the construction placed upon it by the trial court ought not to be disturbed. The facts in the case, sub judice, touching upon the arrest of the defendant are certainly as strong, or stronger, than those which this Court had before it for consideration in the case of Rinehart v. State, Fla.App., 114 So.2d 487; certiorari dismissed, 121 So.2d 654; certiorari denied, 365 U.S. 849, 81 S.Ct. 812, 114 So.2d 487, 5 L.Ed.2d 813. In Rinehart the defendant was arrested and charged with vagrancy on even less incriminating circumstances than was the defendant, Echols, and notwithstanding Rinehart was acquitted in a Municipal Court of the charge of vagrancy, this Court, speaking through Judge Shannon, observed in sustaining the validity of the arrest:

'The fact that subsequently the defendant was acquitted on the charge of vagrancy does not militate against or even decide the question of his arrest being lawful or unlawful. In Brown v. State, Fla.1956, 91 So.2d 175, 177, our Supreme court stated:

* * * The fact that appellant was subsequently acquitted of this charge in the traffic court is of no consequence insofar as the validity of the arrest itself is concerned."

As noted above this defendant was convicted of the crime of vagrancy for which he was arrested.

The latest pronouncement by our Supreme Court admonishing against an appellate tribunal disturbing findings on matters of fact is to be found in the case of The Florida Bar v. Abramson, Fla., 199 So.2d 457, just decided in the January Term, 1967. Speaking through Mr. Justice Drew it was said:

'Evidentiary findings and conclusions of the trier of facts where supported by legally sufficient evidence should not lightly be set aside by those possessing the power of review.'

We conclude, therefore, that there was no error which would justify us in reversing the trial court's Order denying defendant's Motion to Suppress the revolver found on his person and in overruling defendant's objections to the introduction of same into evidence.

Even if the search of the defendant had been accomplished without benefit of a legal arrest, there is an additional compelling reason why the Motion to Suppress ought to have been denied: defendant was on parole from the Divisions of Corrections of the State of Florida and from the State Prison. Appellee urges that this Court ought not to consider defendant's parole status because of an incomplete record demonstrating same, but we find that defendant by his sworn Motions, and exhibits attached thereto, establishes this fact which was not traversed or controverted by the State at trial. An inmate of the State Prison who has been released on parole is a parolee and is still as much a prisoner under the law as his colleagues still languishing behind the walls of Raiford Prison.

'The parolee, although at large while on parole, is a prisoner no less than a prisoner physically confined. He is enduring compulsory expiation of an offense. He is under daily personal restraint. He is at all times answerable to prison system officials for his conduct. Such officials have authority to greatly circumscribe his freedom of choice and action. Being amenable to prison system rules and authority and under immediate restraints is he not, to all practical purposes, in custody? See Carpenter v. Lord, 88 Or. 128, 171 P. 577, 579, L.R.A. 1918D, 674, 677.'

'Once secured, and upon the terms and conditions imposed by the Commission, prisoners become parolees (trustees outside prison walls, as it were) but prisoners amenable to discipline, direction, and supervision of prison system officials none the less.'

'He has agreed not to use intoxicants to excess; not to frequent gambling places or juke joints; not to carry weapons with him, without consent.'

'He has agreed that he will live and remain at liberty without violating the law; that he will waive all extradition rights and process during the parole period; that he will...