Hallman v. State
| Decision Date | 09 March 1977 |
| Docket Number | No. 77--23,77--23 |
| Citation | 343 So.2d 912 |
| Parties | Clifford HALLMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
ON MOTION TO QUASH APPEAL
Appellant seeks to appeal an order denying a three-part motion filed below: 1) a 'Motion for Reduction of Sentence;' 2) a 'Petition for Writ of Coram Nobis;' and 3) a 'Motion to Set Aside Sentence and Motion for New Trial.' The state's motion to quash is well taken.
Appellant was convicted of first-degree murder and sentenced to death. The judgment and sentence were affirmed by our Supreme court in Hallman v. State, 305 So.2d 180 (Fla.1974). The underlying basis of the three-part motion, which was denied by the order appealed from, is that subsequent to the full appellate process it was discovered that the victim of the murder may have died because of intervening negligence on the part of doctors at Tampa General Hospital who were called upon to treat her for the wounds that were received at the hands of appellant. In other words, the basis for the relief prayed for by appellate is 'newly discovered evidence.'
To begin with, insofar as the order appealed from denies that part of appellant's motion seeking reduction of sentence, such order is a nonappealable order. This court is thus without jurisdiction to consider it. See Parker v. State, 214 So.2d 632 (Fla.2d DCA 1968).
Concerning that part of appellant's motion seeking a writ of error coram nobis, it is well settled that permission to seek Finally, with respect to that part of appellant's motion 'to set aside sentence and motion for new trial,' the motion is too late insofar as it seeks a new trial and is again predicated on 'newly discovered evidence' as a basis for setting aside of the sentence. As to this latter point, appellant asks us to consider the motion alternatively as one filed pursuant to Rule 3.850 and as a collateral attack at least on the sentence. It is clear, however, that 'newly discovered evidence' cannot be raised as the basis for relief under that rule. See Hamilton v. State, 237 So.2d 255 (Fla.2d DCA 1970). 'Newly discovered evidence' must be raised by petition for writ of error coram nobis which, as we've noted, must be addressed to the appellate court which first issued its mandate in the case.
such a writ must be sought and granted by the appellate court which had previously entertained an appeal from the final judgment in the case and affirmed it by its mandate. The mandate of the appellate court in such case becomes the judgment of the appellate court; and, here, it's the supreme court. See Russ v. State, 95 So.2d 594 (Fla.1957) and Cayson v. State, 139 So.2d 719 (Fla.1st DCA 1962).
In view whereof, the motion to quash the appeal herein should be and it is hereby granted. The appeal stands dismissed.
ON REHEARING
Relating here only to that portion of appellant's appeal herein seeking a writ of error coram nobis, we denied such relief on the ground that permission to seek such writ must be sought and granted by the appellate court which had previously entertained an appeal from the final judgment in the case and affirmed it by its mandate. (That court, in this case, is the supreme court since the imposition of the death penalty was involved.) We relied for such holding on Ex parte Welles, 53 So.2d 708 (Fla.1951), which held precisely that.
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State v. Gomez
...a ground for collateral attack of a criminal conviction can only be raised on a petition for writ of error coram nobis. Hallman v. State, 343 So.2d 912 (Fla. 2d DCA 1977); Hamilton v. State, 237 So.2d 255 (Fla. 2d DCA 1970). As to the latter, we respectfully disagree and conclude that such ......
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Hallman v. State
...Justice. Clifford Hallman, by petition for writ of certiorari, seeks review of the decision of the district court in Hallman v. State, 343 So.2d 912 (Fla.2d DCA 1977). We originally granted certiorari because of an apparent conflict between that decision and Fast v. State, 221 So.2d 203 (Fl......
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Grosse v. State
...denying a motion for reduction of sentence may not be appealable. Hallman v. State, 371 So.2d 482, 484 (Fla.1979), affirming 343 So.2d 912 (Fla. 2d DCA 1977); Smith v. State, 471 So.2d 1347 (Fla. 2d DCA 1985); Davenport v. State, 414 So.2d 640 (Fla. 1st DCA 1982); Ziegler v. State, 380 So.2......
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Johnson v. State
...reviewed and corrected by the district court upon review of the denial of a rule 3.800(a) motion. So.2d 482 (Fla.1979), aff'g, 343 So.2d 912 (Fla. 2d DCA 1977). Under the present formulation of rule 3.800, subsection (a) applies only to those sentences which are "illegal" or which were impo......