Hall v. State, 71--475

• Decision Date: 21 April 1972
• Docket Number: No. 71--475,71--475
• Citation: 260 So.2d 881
• Parties: Willie C. HALL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 881

260 So.2d 881

Willie C. HALL, Appellant, v. STATE of Florida, Appellee.

No. 71--475.

District Court of Appeal of Florida, Second District.

April 21, 1972.

Walter R. Talley, Public Defender, and Edwin T. Mulock, Asst. Public Defender, Bradenton, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and P. A. Pacyna, Asst. Atty. Gen., Tampa, for appellee.

DAYTON, ORVILLE L., Jr. (Ret.), Associate Judge.

Appellant was tried and convicted of the crime of Breaking and Entering with Intent to Commit a Felony, to-wit: Rape. This trial was had in the Circuit Court of the Fifth Circuit in and for Sumter County, on July 21, 1967. He was represented at the trial by privately employed counsel. No motion for new trial was filed. Sentence of six months to ten years was imposed with credit for 462 days spent in the county jail.

The United States Court of Appeals for the Fifth Circuit on April 9, 1971, determined that the State of Florida provide Appellant with a delayed direct appeal of his conviction or, in the alternative, set aside the conviction and grant him a new trial.

Upon the filing of a petition for writ of Habeas Corpus in this court by appellant, and reply by his official custodian, this Court granted leave to Appellant to file Assignments of Error, Directions to the Clerk, Briefs and Transcript of Record in accordance with the provisions of Part VI, Florida Appellate Rules, 32 F.S.A.

Grounds of Appeal and Assignments of Error were filed as follows: (1) The conviction is not supported by competent evidence, (2) The evidence is not sufficient to sustain the verdict, (3) The conviction is contrary to the law and the evidence, (4) The constitutional rights of the defendant (appellant) have been violated.

This Court has carefully examined the record and briefs of counsel for the respective parties. In this connection this writer is constrained to note that the brief of Appellant does not contribute, as a Force Majeure, to the enlightenment of the Court on the salient points to which this appeal is directed. On the other hand, with a laudable degree of candor and in the finest tradition of the profession, to aid the Court in its search for truth, counsel for Appellee, by written brief and oral argument, has focused the attention of this Court on those matters of record upon which this appeal must turn.

The brief of Appellant is limited to one point on appeal, i.e., the sufficiency of the evidence to sustain the charge. In addition to the sufficiency of the evidence to sustain the conviction as stated by Appellant, counsel for Appellee raises the questions (1) What is the gravamen of the offense charged? (2) Is the testimony of the alibi witness sufficient to establish the innocence of the defendant below? and (3) Did the trial court err in holding that an eight year old child was competent to testify?

Appellee cites numerous cases holding that Appellant is not entitled to 'Full Appellate Review' until, as a pre-requisite thereto, a motion for new trial is filed and denied by the trial court. We do not disagree with the contention of Appellee but, as previously noted, because of the extraordinary circumstances in this case it was determined that full appellate review would be granted.

The facts in the case as disclosed by the record show that one Charles Thomas Hunter, also known as Jimmie Lee Hunter, testified as a Court's witness. Hunter testified that he had a date with the alleged rape victim, a married woman, on the night of July 29, 1966. That he and Appellant, defendant below, went in defendant's car to the alleged victim's home, and seeing the lights in the house burning decided to wait until the occupants of the house had gone to sleep. Some two hours later, about eleven p.m., they returned, parked the car about a quarter-mile away and walked to the house. Hunter then testified that the woman came out of the house and walked with him to the car where they had sexual intercourse, and that he left Appellant outside the house during this interval of thirty or forty minutes. Upon their return Hunter testified that the lights in the house were burning and the woman told him she would need some excuse to give her husband in explanation of her absence. Hunter then stated, 'I found a little stick and I did hit her with it, and she went on home and I left and went back to the car.'

Here it should be noted that the witness Hunter had been tried for the crime of Rape as a result of the events of this same evening, and had been found guilty of a lesser degree of the offense, to-wit: Assault with Intent to Commit Rape. A charge of Accessory after the Fact of Rape against this Appellant was dismissed by the trial court.

The witness, Hunter, was questioned at some length by the state's attorney as to a written statement by Hunter made a few days after his arrest. Hunter attempted to repudiate the statement, claiming he made it in fear of being beaten by his jailers. In the course of his testimony, however, Hunter admitted that the statement was in his own handwriting, and that it was made in the presence of a deputy sheriff and a representative of the Florida Sheriff's Bureau. Hunter further admitted that the officers told him what to write only in the opening and concluding paragraphs, and that the recital of events which occurred on the night in question was solely in his own words. He testified that the officers informed him of his rights, including the right to presence of counsel, and said that although he did not fully understand the nature of his rights at the time he, nevertheless, told the officers that he did understand. Hunter's testimony is totally devoid of any statement of any threats, duress or...