Land v. State

• Decision Date: 20 March 1974
• Docket Number: No. 44269,44269
• Citation: 293 So.2d 704
• Parties: Leo LAND, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 704

293 So.2d 704

Leo LAND, Petitioner, v. STATE of Florida, Respondent.

No. 44269.

Supreme Court of Florida.

March 20, 1974.

Rehearing Denied May 22, 1974.

David J. Busch, Asst. Public Defender; and Robert C. Parker, Jr., Special Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to the District Court of Appeal, First District. That court has certified that its decision, reported at 280 So.2d 706, is one passing upon a question of great public interest, giving this Court jurisdiction under Article V, Section 3(b)(3), of the Constitution of the State of Florida, F.S.A.

The facts of the case, as reported by the District Court, are as follows:

'Defendant seeks appellate review of a judgment of conviction and sentence based upon a jury verdict finding him guilty of causing the death of a human being by the operation of a motor vehicle while intoxicated, contrary to the provisions of law. The sole point on appeal challenges the trial court's denial of his motion for a new trial on the ground that the court erred in refusing to grant him an evidentiary hearing out of the presence of the jury on his motion to suppress a confession made by him because it was involuntarily given.

'From the record it appears without dispute that during the progress of the trial while the State was putting on its evidence, the county sheriff was called as a witness. After a few preliminary questions and answers, the jury was excused in order that the State might proffer an alleged confession made by appellant to the sheriff following the incident out of which this prosecution arose. In this proffer the sheriff testified that after administering the Miranda warnings to appellant and securing from him a waiver of his constitutional rights, appellant told the sheriff that at the time and place in question he had 'bumped a woman' in front of the bank building and continued on in his automobile. At the conclusion of the sheriff's proffered testimony, appellant's trial counsel requested the court for permission to place defendant on the stand for the purpose of offering testimony bearing on the question of the voluntariness of the statements made by him to the sheriff as testified to by the latter in his proffer. The court denied defendant's request, noting that it would permit defendant only to cross-examine the sheriff concerning his proffered testimony. When defendant's counsel declined to cross-examine the sheriff, the court ruled that it would admit into evidence the proffered testimony of the sheriff concerning defendant's confession. When the jury returned to the courtroom, the sheriff completed his testimony concerning defendant's confession as testified to in his proffer.

'After the jury returned its verdict of guilty, appellant filed in the cause his motion for new trial which included as one of its grounds the allegation that the court erred in denying him the right to testify in the absenceof the jury concerning the voluntariness of the confession given by him to the sheriff. After hearing, the court rendered its order in which it held that upon further consideration it concluded that it had erred in denying appellant the right to testify outside the presence of the jury concerning the voluntariness of his confession. Because of such confessed error on its part, the trial court deferred ruling on appellant's motion for a new trial and directed that an evidentiary hearing be held for the purpose of determining the voluntariness of appellant's confession. The order recited that only if after such hearing the court found and determined that the confession by appellant was involuntarily given, would justice require the granting of a new trial. A full evidentiary hearing was subsequently held and both parties were granted the opportunity of offering such evidence as they had concerning the voluntariness of appellant's confession. The record reflects that at the commencement of the hearing appellant's counsel announced that he had no evidence to offer concerning the voluntariness of appellant's confession, but he would stand on his motion for new trial and insisted that a new trial on all issues, including the guilt or innocence of defendant, be granted. Because of this announcement the court adjourned the hearing, denied appellant's motion for a new trial and rendered the judgment of conviction and sentence which is appealed herein.

'The primary question raised by appellant concerns the procedure followed by the trial court in disposing of his motion for new trial. He contends that once the trial court acknowledged its error in denying him the right to a full evidentiary hearing during the course of the trial outside the jury's presence on his motion to suppress the confession, it had no alternative but to set aside the verdict of guilty rendered by the jury and to grant him a new trial on all issues in the case.

'Rule 3.190(i), Rules of Criminal Procedure, 33 F.S.A., provides that a motion to suppress a confession or admissions, illegally obtained shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial. The rule further provides that at the hearing on such motion, the court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion.' ¹

On the basis of the foregoing facts, the District Court held that the refusal to set aside the verdict finding the defendant guilty, and the refusal to grant a new trial on all of the issues in the case, because the defendant had been erroneously denied the right to testify outside the presence of the jury concerning the voluntariness of his confession, and the deferral of a ruling on his motion for new trial until a full evidentiary hearing could be held to determine whether the defendant's confession was voluntary, was not an abuse of discretion. We hereby reverse the decision of the District Court, for reasons which will be set forth below.

The State attempted to establish the predicate for the admission of Petitioner's inculpatory statement to the sheriff. The sheriff's testimony was taken outside the presence of the jury. Petitioner, however, was denied an opportunity to testify outside the presence of the jury for the limited purpose of disputing the voluntariness of the confession. Defense counsel was careful to preserve the record in that regard:

'MR. MAYO: Yes, sir. Your Honor, I would like to ask the court in view of the seriousness of this to first at this time rule whether or not the Court is going to allow me at this proceeding to introduce further evidence under the theory that I have a right to present evidence as to the voluntariness of this. Would the court rule on that proposition?

'THE COURT: Yes, sir. I am going to deny your motion to produce the Defendant's testimony on this point at this time. I will permit you to cross-examine him, the sheriff, any way you wish you to cross-examine him. When you have completed the cross-examination of the sheriff it's the Court's opinion that at that point the Court should rule on whether or not this statement shoud go to the jury and if you have further cross-examination of the sheriff I will permit it.

'THE COURT: Alright. The Court rules that--the Court is going to permit the testimony of the sheriff concerning the statements of the Defendant to go to the jury for their consideration.

'MR. MAYO: Now, further to clarify the record will the record reflect that I am objecting to the Court's ruling on the grounds that the Court has denied the Defendant to present further evidence concerning the matters which is necessary for the Court to rule upon the voluntariness of the confession.

'THE COURT: Let the record so show.

'MR. MAYO: We understand that we are talking about at this proceeding, the Court is denying me the right to put the Defendant on the stand solely for this proceeding.

'THE COURT: That is what the court ruled. Let the jury come back.'

The trial court's ruling was clearly erroneous under Florida law. Graham v. State. ² The trial court recognized its mistake, and admitted having erred in its Order on Motion for New Trial, where it stated:

'In Defendant's Motion for New Trial, he has properly noted that the court erred in denying him the right to testify outside of the presence of the jury concerning the voluntariness of the confession given to Sheriff Belser. Allen v. State, 1st D.C.A., 1970, 239 So.2d 33 and Kitchens v. State, 1st D.C.A., 1970, 240 So.2d 321.'

The trial court concluded, however, that such error did not require the granting of a new trial. In reaching this conclusion, the trial court reasoned:

'This Court, however, is of the opinion that the error does not require the granting of a new trial at this time, but a hearing should be held to determine the voluntariness issue. Only if after said hearing the Court finds the statement involuntary does justice require the granting of a new trial.'

Accordingly, the trial court held a post-trial evidentiary hearing for the purpose of allowing Petitioner an opportunity to present testimony concerning the voluntariness of his confession which had previously been submitted to the jury. At this hearing, defense counsel announced a decision not to proceed further with such an evidentiary hearing on the grounds that such a post-trial proceeding was improper under recent decisional law and denied Petitioner the right to be accorded due process of law. The trial court thereupon denied Petitioner's Motion for New Trial, and entered judgment and sentence. By a split decision, the District Court affirmed the trial court's judgment, and adopted its reasoning as to the necessity for granting new trials under...