McKown v. State
| Decision Date | 21 August 1951 |
| Citation | 54 So. 2d 54 |
| Parties | McKOWN v. STATE. |
| Court | Florida Supreme Court |
D. C. Laird, Lakeland, for appellant.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.
An information filed by the County Solicitor of Polk County charged the appellant with possessing lottery tickets and devices for conducting a lottery, and actually operating a lottery, known as 'Cuba.' Upon his arraignment, August 22, 1950, he plead guilty, but the passing of sentence was deferred until September 5 when the solicitor asked that the appellant be placed on probation and the defendant, in turn, announced that he wished to file a plea in abatement. The judge postponed the matter for a week to enable the appellant to consult counsel.
The plea was filed setting out that the appellant had been summoned before the grand jury and had testified to 'material facts which were involved in this case'; that the testimony was given before the information was filed and therefore the pleader was immunized under Sec. 932.29, Florida Statutes 1949, and F.S.A.
On the same day the appellant moved to withdraw his plea of guilty because (1) he was held incommunicado for four days, from the time of his arrest until he plead, (2) he was advised by his keeper that he would be granted immunity, and (3) he understood his plea was 'sham,' not a genuine plea of guilty.
The state traversed the plea and alleged, affirmatively, that the appellant did not appear before the grand jury until two days after the information was filed and the plea was offered.
This was followed by an amendment to the motion to withdraw the plea, incorporating the additional grounds that the plea was (4) induced by hope of reward, (5) 'entered under mistake and misapprehension of the true circumstances,' (6) offered when the defendant had already been given immunity by testifying under oath before the county solicitor, the state attorney and an investigator for the governor; (7) based on evidence obtained by violation of defendant's constitutional rights because 'said evidence was obtained on an improper and invalid affidavit and search warrant for the Defendant's residence'; and (8) founded on the promise of the investigator to the defendant, and his wife, that upon so pleading 'everything would be all right.'
The next step in appellant's behalf was a motion to quash, setting out in large measure the circumstances already detailed and containing the further ground that the information was defective because in it the defendant was charged with three distinct offenses for each of which there was a different punishment.
The state traversed also the amended motion to withdraw and moved to strike paragraph 7. This motion was granted and the court then proceeded to hear testimony on the amended motion to withdraw.
Recapitulating, grounds 1 to 5, inclusive, and 8, related to the manner in which the plea was obtained, ground 7 was eliminated and ground 6 dealt with the manner of immunity of which we will presently treat.
The defendant was the sole witness in the hearing on the motion to withdraw and the traverse, and we will now undertake to give his story of what happened beginning with the time he left his home accompanied by the state attorney and the governor's investigator the morning of August 19, 1950. These three men traveled to Lake Wales, Clermont, Suwannee River Springs, and the 'edge' of Tallahassee, then returned via Winter Haven to Lake Wales where they spent the night. The following morning the appellant talked with his two companions and the county solicitor in the state attorney's office about lottery activities in the county. The information he gave was reduced to writing and later attested by him. The investigator and the appellant then set out for Clearwater, thence drove to Tallahassee.
After the two reached Lake Wales from Tallahassee the following night, the plea of guilty was mentioned for the first time when the appellant's wife, who had visited him at the hotel earlier in the evening, telephoned from their home that he was 'going to plead guilty the next morning.' It isn't clear how she got the idea or what prompted her to call her husband and make such a positive statement to him. Later in the night the appellant asked the investigator "What about this pleading guilty business" and the latter, according to the appellant, replied Also while they were together the investigator had told the defendant that he 'would be taken care of.'
The appellant testified point blank that the only reason for his pleading guilty was the promise he would be placed on probation and that the only representations made by the state attorney, having...
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