Gibson v. State
| Decision Date | 13 April 1965 |
| Docket Number | No. 64-926,64-926 |
| Parties | Joseph Louis GIBSON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Koeppel, Public Defender and Phillip A. Hubbart, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for appellee.
Before BARKDULL, C. J., and HENDRY and SWANN, JJ.
On July 31, 1958 an indictment was filed in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, charging the appellant with the crime of first degree murder. The appellant executed and filed a motion requesting the appointment of Attorney Herman Methfessel to represent him in this matter. Accordingly, an order was entered appointing the aforesaid attorney as counsel for the appellant.
Following the appointment of counsel, the appellant was arraigned and entered a plea of 'not guilty' to the charge.
On September 9, 1958 the appellant moved the court for a psychiatric examination and an order granting the same was entered on September 11, 1958. Following the examination, the trial court entered its order adjudging the appellant to be sane and competent to stand trial.
On or about October 13, 1958 the appellant, with the advice of counsel, voluntarily withdrew his prior plea of 'not guilty' to the charge of murder in the first degree, and entered a plea of 'guilty' to the crime of murder in the second degree. The trial court accepted the change of plea.
On October 13, 1958 the appellant was adjudicated guilty of the crime of murder in the second degree, and sentenced to a term of life imprisonment in the State Penitentiary.
The appellant has filed his petition for relief, pursuant to Criminal Rule Number One, F.S.A. ch. 924 Appendix, which alleged in substance:
(1) That appellant was denied the assistance of counsel after making a request;
(2) That illegal and unlawful evidence was obtained from him under duress; and
(3) That appellant was denied a preliminary hearing.
The trial court denied appellant's petition and thereafter the appellant timely filed his notice of appeal to this court.
The law is well settled in Florida that a trial court may summarily deny a Rule One petition without a full evidentiary hearing when the allegations in the petition, even if true, fail to constitute valid grounds for collateral attack. Marti v. State, Fla.App.1964, 163 So.2d 506; Savage v. State, Fla.App.1963, 156 So.2d 566.
It is also well established that allegations conclusively refuted by the files and records in a case do not constitute valid grounds for collateral attack. Sampson v. State, Fla.App.1963, 158 So.2d 771.
Appellant's first allegation is as follows:
This allegation is refuted by the record, which indicates that the trial court appointed Attorney Herman Methfessel at the personal request of the appellant prior to the time of arraignment. In addition, a petition filed with the trial court by the appellant's attorney stated that he was contacted by the appellant 'a few days after he was arrested on a warrant from the Justice of the Peace Court' and that he 'talked to the defendant several times, as well as to members of his family, in preparation for the preliminary hearing, which was held on July 22, 1958'.
Accordingly, the first allegation of the petition is conclusively refuted by the record and the trial court was entitled to summarily reject it.
The appellant's second allegation was:
'Movant was abused, cursed and intimidated until movant signed what he thought to be a statement of his movements and whereabouts on the night of the alleged killing.'
As pointed out above, the appellant withdrew his plea of 'not guilty' to the crime of first degree murder, and entered a plea of 'guilty', with the advice of counsel, to second degree murder. Consequently, this statement was never used against him and proof of guilt was not required. Kirkland v. State, Fla.App.1964, 165 So.2d 774, 775.
In addition, a petition was filed by appellant's trial counsel in which the trial counsel made a full and complete...
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