Malcolm v. State, 90-1806

• Decision Date: 29 September 1992
• Docket Number: No. 90-1806,90-1806
• Parties: 17 Fla. L. Week. D2256 Vernal Earle MALCOLM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 945

605 So.2d 945

17 Fla. L. Week. D2256

Vernal Earle MALCOLM, Appellant, v. STATE of Florida, Appellee.

No. 90-1806.

District Court of Appeal of Florida,

Third

District.

Sept. 29, 1992.

Blake & Lida and Amy Agnoli, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Jacqueline M. Valdespino, Asst. Atty. Gen., for appellee.

Before HUBBART, COPE and GERSTEN, JJ.

HUBBART, Judge.

Vernal Earle Malcolm appeals the trial court's denial of his petition for a writ of error coram nobis. We reverse.

I

On January 31, 1983, Malcolm was charged by information before the trial court with (1) unlawful possession of a firearm by a convicted felon, Sec. 790.23, Fla.Stat. (1981); and (2) unlawful possession of marijuana, Sec. 893.13(1)(f), Fla.Stat. (1981). As to count one, the information alleged that Malcolm "had previously been convicted of a felony in a court of this State, to wit: a conviction on October 29, 1980, for the felony crime of unlawful sale of cannabis...." (R.1); count II of the information contained no allegation as to the quantity of marijuana possessed. On May 3, 1983, Malcolm entered a plea of guilty as charged to these offenses and, through counsel, stipulated that there was a factual basis for this plea, namely, that the state could make a prima facie case against him. The trial court adjudicated the defendant guilty of felonies on both counts and placed Malcolm on two-years probation; on a subsequently filed affidavit charging a violation of probation, the trial court found Malcolm in violation of his probation and extended the probationary period for one year, terminating May 10, 1986. Malcolm served out this extended probationary period without apparent incident. No appeal was ever taken by the defendant from this conviction.

On July 12, 1990, after his probation had expired, Malcolm filed a petition for a writ of error coram nobis in the trial court seeking (1) to set aside his conviction for unlawful possession of a firearm by a convicted felon on the ground of an alleged factual mistake, namely, that he was not, in fact, a convicted felon as alleged in the information, and (2) to correct a scrivener's error in his judgment of conviction for unlawful possession of marijuana to reflect that the subject conviction was for a first-degree misdemeanor, not a third-degree felony. It was alleged that on October 23, 1980, the defendant was convicted as charged, after a jury trial, of (1) the felony offense of unlawful sale of less than twenty grams of marijuana, ¹ [Sec. 893.13(1)(a)(2), Fla.Stat. (1979) ], and (2) the misdemeanor offense of unlawful possession of less than twenty grams of marijuana [Sec. 893.13(1)(f), Fla.Stat. (1979) ]; that, on appeal, these convictions were reversed and remanded for a new trial by this court, Malcolm v. State, 415 So.2d 891 (Fla. 3d DCA 1982); and that, upon remand, the defendant, on September 28, 1982, entered a plea of guilty to both counts of the information, whereupon the trial court on the same day (a) withheld adjudication of guilt as to the felony offense of unlawful sale of not more than twenty grams of marijuana and placed the defendant on one-year probation, terminable immediately, so that the defendant was never convicted of this felony offense, see Castillo v. State, 590 So.2d 458, 460-61 (Fla. 3d DCA 1991), and (b) entered a suspended sentence on the misdemeanor of unlawful possession of less than twenty grams of marijuana. Attached to the petition was (a) a copy of the information in this case, (R.55), (b) the clerk's minutes reflecting the entry of the 1982 guilty plea, the withhold of adjudication on the felony charge, the suspended sentence on the misdemeanor charge (R.54), and (c) the order placing the defendant on probation (R.57); this record fully supports the facts alleged in the petition, which facts were not disputed by the state below.

The trial court conducted a hearing on the petition and thereafter entered an order denying the petition on two grounds: (1) the error complained of was one of law, not of fact, which a writ of error coram nobis does not lie to correct, and (2) even if considered a factual error, the petition was not timely filed. Malcolm appeals.

II

The law is clear that "the only currently viable use for the writ of error coram nobis is where the defendant [as here] is no longer in custody [on the sentence which he/she collaterally attacks], thereby precluding the use of rule 3.850 as a remedy." Richardson v. State, 546 So.2d 1037, 1039 (Fla.1989). A petition for a writ of error coram nobis must be filed in the original trial court, rather than the appellate court, where, as here, there has been no appeal taken from the judgment and sentence sought to be vacated; otherwise, the petition must be filed in the appellate court which affirmed the defendant's conviction. State v. Woods, 400 So.2d 456, 457 (Fla.1981); Hallman v. State, 371 So.2d 482, 484-85 (Fla.1979).

It is well settled in Florida that the function of a writ of error coram nobis is to correct fundamental errors of fact, and that the writ is not available to correct errors of law. In order to be legally sufficient, the petition for a writ of error coram nobis must, therefore, allege specific facts of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment and sentence attacked; the petition must also assert the evidence upon which the alleged facts can be proved and the source of such evidence. The facts upon which the petition is based must have been unknown to the trial court, the defendant, and defense counsel at the time of trial; and it must appear that the defendant or his/her counsel could not have known such facts by the use of due diligence. Woods, 400 So.2d at 457; Hallman, 371 So.2d at 484-85.

A classic example of a proper use of a writ of error coram nobis is where new facts or evidence are uncovered since the entry of the judgment of conviction and sentence being attacked, which facts conclusively establish that the defendant is innocent of the crime for which he/she has been convicted. Ex parte Welles, 53 So.2d 708 (Fla.1951). As eloquently stated by the Court in Welles "The very essence of judicial trial is a search for the truth of the controversy. When the truth is discovered, the pattern for dispensing justice is obvious. All that we are importuned to do at this time is to open the way for the trial court to examine and correct its record with reference to a vital fact not known to the court when the judgment of conviction was entered. Due process and equal protection are governed by rule of Court, the criteria by which it is determined being fairness, reasonableness and justice. When one is faced with a five year sentence to the penitentiary for a crime he did not commit, his conviction being due solely to mistaken identity, this court should not quibble over trifles in devising a formula to correct the injustice. The strength of our jurisprudence is due to the fact that it readily accommodates itself to all classes of controversies. Justice is its dominating purpose and we are led to that by rules of procedure. They are not sacrosanct, in fact, when they fail to lead to justice, the time for change has arrived."

Id. at 711-12. Also, a writ of error coram nobis is available to correct an error in the court's record caused by a default in the performance of duty by ministerial officers. Russ v. State, 95 So.2d 594, 597 (Fla.1957); Lamb v. State, 91 Fla. 396, 107 So. 535, 537 (1926).

III

Turning to the instant case, we have no trouble in concluding that the trial court should have granted Malcolm's petition for a writ of error coram nobis. Without dispute, Malcolm chose the correct remedy of a petition for a writ of error coram nobis to collaterally attack his convictions, rather than a motion to vacate under rule 3.850 of the Florida Rules of Criminal Procedure, because he is no longer serving the...