House v. State

• Decision Date: 18 December 1937
• Citation: 177 So. 705,130 Fla. 400
• Court: Florida Supreme Court
• Parties: HOUSE v. STATE.

177 So. 705

130 Fla. 400

HOUSE v. STATE.

Florida Supreme Court, Division B.

December 18, 1937

Albert R. House was convicted of robbery and possession of burglarious tools, and his conviction was affirmed by the Supreme Court, and he applies to that court for leave to apply to the Criminal Court of Record for writ of error coram nobis.

Petition denied.

COUNSEL E. L. Bryan, of Tampa, for petitioner.

OPINION

BROWN Justice.

This is a petition filed in this court on August 4, 1937, by Albert R. House for leave to file an application in the criminal court of record for Hillsborough county for a writ of error coram nobis to review the judgment of conviction rendered by that court. That this is the nature of the petition to this court is shown by the affidavit attached thereto made and signed by the petitioner. Attached to the petition here is a copy of the application which the petitioner desires to interpose in the trial court for writ of error coram nobis.

As a writ of error coram nobis can only be used by the court which rendered the judgment, application for such a writ could not be made to this court, which only affirmed the judgment rendered. But as we have held in several cases, when the judgment of a trial court of this state is on writ of error affirmed by this court, the judgment of the lower court becomes to such an extent the judgment also of this court that an application for writ of error coram nobis should not be made to the trial court until the permission of this court is first obtained to make such application.

The application or petition as made to this court alleges that Albert R. House was informed against by the county solicitor of Hillsborough county, Fla., upon three informations charging petitioner with robbery and the possession of burglarious tools; that thereafter he entered pleas of guilty to each of said informations and the judge of said court sentenced petitioner to the state penitentiary for a total period of seventy years. This was in 1925. Thereafter, during the year 1935, petitioner sued out a writ of habeas corpus in the Supreme Court of Florida, attacking the validity of the judgments, and was remanded by this court to the criminal court of record for entry of proper judgments of conviction and sentences of imprisonment. That petitioner was brought before said criminal court of record and at that time filed three motions in said court, one for discharge one in arrest of judgment and one to be allowed to withdraw his pleas of guilty and enter pleas of not guilty and go to trial; said motions being filed in each of said cases. The judge of said court denied each of said motions, entered judgments against petitioner, and petitioner sued out writs of error to this court, which were finally determined on February 17, 1937; the action of the court below in imposing a complete judgment and sentence in each of the three cases being affirmed. See House v. State, 127 Fla. 145 151, 172 So. 734, 736.

The present petition further alleges that at the time the petitioner entered pleas of guilty in said cases in 1925 he was denied the benefit of counsel, after having employed and paid counsel to represent him; that he was brought before the court without any notice in advance of the time he would be brought before the court for arraignment and pleas; that he had employed and paid the Hon. George W. Bassett of St. Augustine to represent him in said case and when brought before the court for arraignment and pleas he requested an opportunity to notify his said attorney, which was denied him; that all the facts are set forth in a motion for granting writ of error coram nobis, to be submitted to the judge of the criminal court of record of Hillsborough county, if this court permits it, a copy of which is sworn to and attached to the petition. The petitioner allege that he is advised that if the facts set forth in the attached motion had been brought to the attention of the trial judge that petitioner would not have been allowed to enter pleas of guilty in said cases, and, further, that if he had gone to trial, which he would have done if apprised of his legal and constitutional rights, he would have been acquitted in each of said cases. He also alleges that he has recently learned for the first time of three witnesses who would testify to material facts in his behalf, and that if the facts which said witnesses will testify to had been known to the court at the time, it would have caused the court to enter up an entirely different judgment. That none of these matters could at the time have been known to petitioner by the exercise of reasonable diligence; that he was confined in the county jail and under the circumstances he did exercise all reasonable diligence in an attempt to ascertain all matters of fact in relation to his case from the time of his arrest until the time of his last sentence.

In addition to the above allegations, there are contained in the attached copy of motion, which the defendant proposes to file in the trial court, some further allegations. One of them was that the evidence on which the informations against the defendant were based was obtained by an illegal search made by officers under an illegal search warrant. That there were others that were jointly charged with this defendant who...