Paulk v. State
| Decision Date | 07 June 1968 |
| Docket Number | No. 67--500,67--500 |
| Citation | 211 So.2d 591 |
| Parties | Donald Gene PAULK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Lee R. Horton, Jr., Public Defender, and J. Michael McCarthy, Special Asst. Public Defender, Lakeland, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
This is an appeal from a denial of a motion filed under Rule 1.850, CrPR, 33 F.S.A. (formerly Rule 1). The appellant raises two points for our consideration. First, he suggests that certain evidence and testimony of an offense other than that for which he was being tried, statutory rape, was erroneously admitted by the trial judge. Evidence of an alleged forced rape, an offense unconnected with statutory rape, was introduced over objection at appellant's trial. The second point for this court to consider concerns the alleged deprivation of appellant's constitutional rights.
In discussing the first question it appears that appellant may have a valid point, however, his argument is not cognizable under Rule 1.850. It has been unanimously held that questions with respect to admissibility of evidence are reviewable only on appeal and not upon a motion to vacate or set aside the sentence under Rule 1.850. Robinson v. State, Fla.App.1967, 194 So.2d 29; Gobie v. State, Fla.App.1966, 188 So.2d 33; Ziegler v. State, Fla.App.1965, 180 So.2d 477; Kirkland v. State, Fla.App.1964, 165 So.2d 774; Austin v. State, Fla.App.1964, 160 So.2d 730.
The second contention made by appellant is that he was denied the right to counsel until after he was arraigned and that as a consequence of this it was error to admit into evidence any incriminating statement made before he was given the benefit of counsel. To support this contention appellant cites Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, which renders inadmissible statements elicited by police during an incustody interrogation if the accused's request to consult with his lawyer has been denied, and Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, relating to the right of a suspect to have an attorney present at an in-custody interrogation. The United States Supreme Court, however, in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, ruled that neither of these cases was to be applied retroactively. Appellant's trial in the instant case took place in 1958, and therefore he can claim the benefit of neither decision. Under the Johnson rule prisoners whose trials were completed at the time Escobedo and Miranda were decided must invoke the substantive test of voluntariness in connection with an attack on a conviction based on a confession. Thus, in the final analysis the sole question to be resolved is whether the incriminating statements made by appellant and used against him at trial were voluntarily made.
There seems to be no single all encompassing test for what is or is not voluntariness. Culombe v. Connecticut, 1961, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037. But a voluntary confession or statement in its...
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Joseph v. State, 81-591
...DCA 1971); Sellers v. State, 249 So.2d 519 (Fla. 3d DCA 1971); Garner v. State, 218 So.2d 460, 463 (Fla. 2d DCA 1969); Paulk v. State, 211 So.2d 591 (Fla. 2d DCA 1968); Robinson v. State, 194 So.2d 29 (Fla. 2d DCA 1967); Brown v. State, 187 So.2d 669 (Fla. 3d DCA), cert. denied, 192 So.2d 4......
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State v. Caballero, s. 80-969
...DCA 1974), defendant was not deluded as to his true position. No improper or undue influence over his mind was exerted. Paulk v. State, 211 So.2d 591 (Fla. 2d DCA 1968). Confessions elicited from a defendant who is under mental distress not induced by outside sources, but which originates f......
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Collins v. State
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