Kinsey v. State
| Decision Date | 10 November 1944 |
| Citation | 155 Fla. 159,19 So.2d 706 |
| Parties | KINSEY v. STATE. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Madison County; Hal W. Adams judge.
R. C Horne, of Madison, S.D. Clarke, of Monticello, and William McChesney, of Madison, for appellant.
J. Tom Watson, Atty. Gen., and John C. Wynn, Asst. Atty. Gen., for appellee.
We have now under consideration the petition of Jeff Kinsey for permission to apply to a judge of the Third Judicial Circuit for a writ of error coram nobis to review a situation which he claims evolved in the trial of his case and resulted in a void judgment.
Before discussing the contents of the petition and its merits we shall give in abbreviated from the history of Jeff Kinsey's prosecution. He was indicted for the larceny of two animals convicted, and sentenced to the penitentiary. Upon appeal the judgment was affirmed in an opinion filed December 7, 1943. Jeff Kinsey v. State, 153 Fla. 750, 15 So.2d 753. Many months later he applied to the circuit court for a writ of habeas corpus, charging that he had been convicted upon an indictment which became void when the prosecuting officer amended it after the formal charge had been returned by the grand jury. The circuit judge quashed the writ, and the matter reached us on appeal from that order. We held, in substance, that the ruling was correct because the judgment, having been affirmed, became one of this court, hence could not be assailed in any other tribunal save a federal court having jurisdiction; also because habeas corpus as here employed constituted a collateral attack which could not be supported by matters dehors the record. To state it otherwise, the petitioner could not prevail unless upon the face of the original record in the prosecution the judgment appeared void. No such condition was disclosed. From a photostatic copy of the indictment filed in the habeas corpus proceeding it was shown that an interlineation had been made subsequent to the typing of the instrument, whether before return or afterward has not so far been established.
We said in our opinion in the habeas corpus appeal: 'For aught the original record shows this [the revision] may have been done before the indictment was returned,' and we have emphasized here that it was from the photograph filed in the habeas corpus proceeding we were apprised of the alteration. In the interest of accuracy it should be said that about four months after the appeal in the original case was taken and jurisdiction attached here, there was filed in the circuit court an affidavit setting out the change of the indictment subsequent to its return by the grand jury. Obviously this affidavit had no proper place in the record, had no efficacy. As it was ignored in the other appeals, we shall disregard it now.
This brings us to the renewed attack. It is petitioner's contention that by writ of error coram nobis he may develop extrinsic facts demonstrating the alteration by the state attorney of material allegations so that the prosecution proceeded thenceforward upon an indictment which was void. Inasmuch as a writ of this character is available only when no other remedy exists, as we shall later repeat in defining its scope, it is imperative that the judgment appear prima facie valid. Kuhn v. State, 98 Fla. 206, 123 So. 755.
It may be said generally, that this is the proper method of presenting matters not of record which would evidence the voidness of a judgment. The petitioner to be successful must aver circumstances which, assumed for the present to be true would entitle him to the writ; he must, in his application to this court for permission to assail a judgment which has been affirmed, fully disclose the facts relied upon to warrant a writ of error coram nobis. Washington v. State, 92 Fla. 740, 110 So. 259. The prerequisites to issuance of the writ were assembled in our opinion in Nickels v. State, 86 Fla. 208, 98 So. 497, 502, 99 So. 121, when we first recognized the procedure. As we have said, it was intended to supply a remedy where no other was available to bring to the notice of the court a fact which would, if known at the time, have prevented entry of the judgment. To justify issuance of a writ the vital fact must have been absent principle and purposes of the writ and of such consequence as to have precluded, had it been known, pronouncement of the judgment; also it must appear that the defendant and his counsel (Lamb v. State, 91 Fla. 396, 107 So. 535) not only were ignorant of the fact but could not have known it by the use of diligence in time to present it to the court, unless excused by fear, duress, fraud, or the like. The principle and purposes of the writ and ...
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Henzel v. State, 77-2631
...the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So.2d 706 (1944). In considering a petition for writ of error coram nobis, the appellate court has the responsibility to determine the leg......
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...the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So.2d 706 (1944). In considering a petition for writ of error coram nobis, the appellate court has the responsibility to determine the leg......
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Riley v. State, s. 63750
...the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So.2d 706 (1944). 371 So.2d at 484-85. The petition must allege facts of such a vital nature that had they been known to the trial court, ......
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...the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So.2d 706 (1944). 371 So.2d at 484-85 (emphasis supplied). The petition must also allege facts of such a vital nature that had they been k......