Lawson v. State
| Decision Date | 28 January 1970 |
| Docket Number | No. 38957,38957 |
| Citation | 231 So.2d 205 |
| Parties | Reuel LAWSON, Petitioner, v. The STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Robert L. Koeppel, Public Defender and Gregory B. Hoppenstand, Asst. Public Defender, for petitioner.
Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for respondent.
This cause is here on petition for writ of certiorari supported by certificate of the District Court of Appeal, Third District, that its opinion reported in 225 So.2d 581, is one which involves a question of great public interest. See Sec. 4(2), Art. V, Florida Constitution, F.S.A.
The certificate accompanying the decision here states:
'(T)hat the decision of this court in this case 'passes upon a question * * * of great public interest' whether a defendant convicted and serving a sentence thereon who is paroled and thereafter is convicted and sentenced on a subsequent charge, and is serving such intermediate sentence with time remaining to be served thereafter in order to complete the first sentence, has standing to move in the trial court under Rule 1.850 CrPR for relief from the first conviction and sentence.'
The statement of the question with such particularity is helpful to this Court in the ultimate determination of the cause.
A prisoner serving consecutive sentences is 'in custody' under any one of them for the purposes of Rule 1.850, Florida Rules of Criminal Procedure, 33 F.S.A., formerly Criminal Procedure Rule One. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, overruling McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. See Keith v. State, 222 So.2d 186 (Fla.1969). Our decision in Fretwell v. Wainwright, 185 So.2d 701 (Fla.1966), which relied on the McNally concept is overruled.
The orders of the trial court relating to this question were entered prior to May 20, 1968, the date of the Peyton decision and were correct until Peyton overruled McNally. Such are the uncertainties facing the trial judge.
Where a question is certified to this Court by a District Court of Appeal as one of great public interest, our scope of review is extended to the entire decision of the District Court, and not just the question certified. Pan American Bank of Miami v. Alliegro, 149 So.2d 45 (Fla.1963); Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla.1965).
The defendant was informed against on August 15, 1953, for armed robbery, principal in the second degree. The Minutes of the Criminal Court of Record reflect the arraignment on September 1, 1953, in the following language:
'The Defendants, Reuel Lawson, Eugene Williams, Herbert Taylor and Gerald Thomas, were arraigned in open Court by Earl D. Waldin, Jr., Assistant County Solicitor, and the Defendants, Reuel Lawson, Eugene Williams and Gerald Thomas, pleaded guilty, the Defendant, Herbert Taylor, pleaded not guilty, waiving trial by Jury.
'Case continued.'
On September 3, 1953, judgment and sentence were entered. The Court Minutes describe these proceedings in the following language:
'Earl D. Waldin, Jr., Assistant County Solicitor.
'M. O'Quinn, Counsel for the Defense.
'David L. Feldman, Celia Feldman, Harold Jones and the Defendants, Reuel Lawson and Eugene Williams, were sworn and testified before the Court.
'The Court adjudged the Defendants, Reuel Lawson, Eugene Williams, Herbert Taylor and Gerald Thomas, guilty and sentenced them as follows:'
Defendant was sentenced to a term of ten years in the State Prison. After serving three years he was paroled, then convicted of armed robbery. Before completing the second sentence he was again paroled, again convicted and sentenced for breaking and entering. He is presently serving the intervening sentences.
The motion to vacate under consideration was the fourth one filed by the defendant. Each of the prior three denials were based upon the fact that defendant was not 'in custody' and upon the fact that the files and records refuted his allegation that he was without counsel at the arraignment and at the imposition of sentence.
The law is clear, as contended by the State, that a summary denial of a motion to vacate under Rule 1.850, Florida Rules of Criminal Procedure, is authorized where the same allegation has been raised and rejected in prior motions. Echols v. State, 210 So.2d 13 (Fla.App.2d 1968); Weeks v. State, 201 So.2d 764 (Fla.App.3d 1967); Taylor v. State, 183 So.2d 865 (Fla.App.3d 1966). However, in the case Sub judice, the previous denials were authorized under the reasoning in Fretwell v. Wainwright, Supra, and McNally v. Hill, Supra. The Court could not entertain a motion to vacate in the first instance until it appeared that defendant was 'in custody' under the decisions as they then existed, so the allegation of lack of counsel at arraignment and sentencing was not before the Court at the time of the denial of any of the previous motions. In the light of these circumstances, we are not precluded from considering the correctness of the summary denial of defendant's contention that he was without counsel on the ground that this contention was previously rejected.
Rule 1.850 contains the following provision:
'Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.'
In discussing this rule a District Court of Appeal in Sampson v. State, 158 So.2d 771 (Fla.App.2d 1963) said:
See also, Stanley v. State, 203 So.2d 31 (Fla.App.2d 1967); Florida's Criminal Procedure Rule Number One by Sidney A. Stubbs, Jr., 17 Fla.Law Rev. 617 (1964--1965).
The motion under consideration was sufficient to notify the Court that defendant complained because of lack of counsel at arraignment and sentencing. Thereupon, it became necessary for the Court to examine the 'files and records in the case' for the purpose of determining whether such files and records 'conclusively show that the prisoner is entitled to no relief.' The only entry in the record showing presence of counsel is the extract from the Minutes of September 3, 1953, reciting:
'M. O'Quinn, Counsel for the Defense.
'David L. Feldman, Celia Feldman, Harold Jones and the Defendants, Reuel Lawson and Eugene Williams, were sworn and testified before the Court.
'The Court adjudged the...
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Nova v. State, 82-1766
...3.850 motion is no basis for denying relief. Whitney v. State, 184 So.2d 207 (Fla. 3d DCA 1966), and cases collected therein; Lawson v. State, 231 So.2d 205; Richardson v. State, 202 So.2d 137; Weeks v. State, 201 So.2d 764; Hall v. State, 183 So.2d 277. No matter how many prior application......
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Bates v. State
...Wood. Bates, 818 So.2d at 628-29. We do not agree. The district court's decision conflicts with this Court's decision in Lawson v. State, 231 So.2d 205, 206 (Fla.1970), and errs in holding that this Court's decision in Wood applies to Bates' petition for a writ of error coram The district c......
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...being out on bail, no longer appears to preclude her relief where a fundamental right to discharge is made to appear. Compare Lawson v. State, Fla., 231 So.2d 205 overruling Fretwell v. Wainwright, Fla., 185 So.2d 701. See also, 77 A.L.R.2d, page 1307, entitled 'Right of one at large to wri......
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Foster v. State
...denied if the files and records in the case conclusively refute the allegations or otherwise conclusively preclude relief. Lawson v. State, 231 So.2d 205 (Fla.1970); State v. Reynolds, 238 So.2d 598 It appears from the face of the motion that the matters relating to the competency of the ap......