Mccall v. State
| Decision Date | 18 February 1939 |
| Citation | 136 Fla. 349,186 So. 803 |
| Parties | McCALL v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Dade County; H. F. Atkinson, Judge.
Petition by Franklin Pierce McCall for leave to apply to trial court for writ of error coram nobis.
Petition denied.
COUNSEL C. A. Avriett and E. C. Rutledge, both of Jasper, for plaintiff in error.
George Couper Gibbs, Atty. Gen., Lawrence A. Truett and Tyrus A. Norwood, Asst. Attys. Gen., and G. A. Worley, State Atty., of Miami, for the State.
This cause is before us on petition for leave to apply to the Court below for writ of error coram nobis.
Even in the court of original jurisdiction the process is not a writ of right but is one granted only on a showing of cause, and then it is in the court's discretion whether, on the affidavits presented, to allow the writ or not. See 34 C.J. 399, Sec. 622, Washington v. State, 92 Fla. 740, 110 So. 259.
Here the petitioner presents no supporting affidavits, but only his own verified petition. Such pertinent allegations as are contained in the petition are positively and directly contradicted by the testimony given by the defendant in the court below and by other witnesses.
In the petition now before us the convicted petitioner for the first time in the record denies his guilt of the offense charged. The record of his own testimony and of corroborating physical circumstances show beyond any question of reasonable doubt that he did commit the crime of which he stands convicted and that his present belated denial of guilt is false and untrue.
In the exercise of its discretion in matters of this sort the court should look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. This duty we have met and we are convinced that to grant the petition would be no less than a trifling with justice.
Aside from this, the petition comes too late under the facts in this case. See Lamb v. State, 91 Fla. 396, 107 So. 535.
The petition is denied.
So ordered.
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...in considering an application for leave to apply to the trial court for a writ of error coram nobis is found in McCall v. Florida, 1939, 136 Fla. 349, 350, 186 So. 803: 'In the exercise of its discretion in matters of this sort the court should look to the reasonableness of the allegations ......
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