Peel v. State

• Decision Date: 01 February 1963
• Docket Number: No. 3093,3093
• Citation: 150 So.2d 281
• Parties: Joseph A. PEEL, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 281

150 So.2d 281

Joseph A. PEEL, Jr., Appellant, v. STATE of Florida, Appellee.

No. 3093.

District Court of Appeal of Florida, Second District.

Feb. 1, 1963.

Rehearing Denied March 5, 1963.

Harry W. Fogle, of Fogle, Wilson & Shingler, St. Petersburg, for appellant.

Richard W. Ervin, Atty. Gen. Tallahassee, Robert R. Crittenden, Asst. Atty. Gen. Lakeland, Phil D. O'Connell, State Atty., West Palm Beach, Eugene P. Spellman, Miami, for appellee.

ALLEN, Acting Chief Judge.

Joseph A. Peel, Jr., appeals from a sentence to life imprisonment given him after a nolo contendere plea under an indictment returned by the Palm Beach County Grand Jury which accused him of being an accessory before the fact to first degree murder.

The indictment filed November 23, 1960, charged that Floyd A. Holzapfel effected the death of one Marjorie M. Chillingworth by drowning her on June 15, 1955, and that, at divers times between May 1, 1955, and June 15, 1955, the defendant, Joseph A. Peel, Jr., unlawfully counseled, hired, procured and commanded the said Floyd A. Holzapfel to do and commit the aforesaid felony.

On the same date another indictment was filed charging Holzapfel with the crime of murder in the first degree in the killing of Judge C. E. Chillingworth, and charging the defendant Peel with being an accessory before the fact to the commission of that murder.

The Circuit Court of the 15th Judicial Circuit transferred the venue of the cause to the Circuit Court of the 9th Judicial Circuit in and for St. Lucie County, where defendant Peel was tried as being an accessory to the murder of Judge Chillingworth, worth, who was the husband of Marjorie M. Chillingworth. Peel was convicted by the jury with a recommendation of mercy and given a mandatory life sentence by the trial judge. Subsequently, after an unsuccessful attempt to secure an impartial jury for the instant case in St. Lucie County, an order was entered transferring this cause to the Circuit Court of the 10th Judicial Circuit in and for Polk County, Florida.

On November 29, 1961, after two days of hearing which were chiefly taken up in the selection of a jury, at a conference with the Honorable D. C. Smith, Judge of the 9th Judicial Circuit, who was the trial judge in the previous Peel case for the murder of Judge Chillingworth, and who had been assigned to the 10th Circuit for the instant case, the appellant voluntarily withdrew his plea of not guilty and entered a plea of nolo contendere to the indictment. The prosecuting attorney thereupon offered into evidence with the acquiescence of appellant's counsel the transcript of testimony constituting the prosecution's evidence against the appellant taken in the trial of Peel in the Judge Chillingworth case. The trial court accepted the appellant's plea of nolo contendere and adjudged him guilty of the crime charged in the indictment, sentencing him to life imprisonment in the Florida State Prison.

Upon the appellant's motion for new trial being denied on December 4, 1961, he filed on February 22, 1962, his notice of appeal herein.

The appellant states in his brief, and argues, the following questions:

'1. Is a defendant charged with being an accessory before the fact to first degree murder entitled to a bill of particulars as to the crime which is alleged to have occurred five and one-half years before the finding of the indictment?

'2. Was it error for the court to deny the defendant's motion for a mistrial made in this cause based upon the defendant's being taken before the panel of prospective jurors under shackles and bonds, to-wit, handcuffs?

'3. Was it error for the court to deny the defendant's motion for a continuance in order to enable to defendant to obtain the testimony of Peggy Holzapfel and Charles Rothschild and to deny the issuance of a commission for the taking of the testimony of the said witnesses by interrogatories?

'4. Was it error for the court to deny the defendant's motion to dismiss this prosecution based upon the ground that a speedy and public trial had been denied to him?

'5. Was it error for the court to deny the defendant's motion to dismiss this prosecution based upon the ground that the defendant was twice being placed in jeopardy for the same offense?

'6. Can the court accept a plea of nolo contendere to a capital offense?

'7. Can the court accept a plea of nolo contendere to a capital offense upon the express condition that a life sentence be imposed upon the defendant?'

The State adduces the following additional point:

'Whether an accused, after voluntarily entering a plea of nolo contendere to a criminal charge, being adjudicated guilty and sentenced thereon, may raise questions on appeal concerning matters other than the sufficiency of the accusatory writ.'

We shall affirm the lower court in this case.

Because of the effect that a nolo contendere plea has on the other points stated by the appellant, we must discuss its acceptability by the courts in the first instance. We shall then proceed to discuss in turn appellee's additional point and then appellant's sixth and seventh points before alluding to appellant's other five points, the determination of which depends on our conclusions regarding the matters first considered.

The questions involving the plea of nolo contendere are ones of first impression in Florida. Counsel have cited no Florida cases nor have we found by independent research any that answer the points directly. However, three decisions by our Supreme Court involved cases in which nolo contendere pleas had been filed but in which the court did not discuss the questions raised in the instant case.

Before we survey the decisions of other jurisdictions for the historical development of the plea of nolo contendere, we will discuss the three Florida cases in which the plea was used.

In Pensacola Lodge No. 497, B. P. O. E. v. State, 74 Fla. 498, 77 So. 613, it was stated:

'Where a plea of nolo contendere is accepted it is not necessary in passing sentence for the court to adjudge the party to be guilty, for that follows as a legal inference from the implied confession in the plea; but the court should adjudge that the defendant is convicted of the offense charged, and the sentence which follows should impose the penalty as provided by law. * * *'

In Fox v. State, 112 Fla. 104, 150 So. 228, the defendant filed a plea of nolo contendere which he subsequently moved to withdraw. The motion to withdraw was denied, and an appeal was taken by the defendant. The Supreme Court, in its opinion, said:

'To an information charging a felony, the accused, apparently without understanding its import, offered a plea of nolo contendere, upon which a judgment of conviction and sentence to the state prison was rendered. It does not appear that the accused was represented by counsel when the plea was filed. A motion to vacate the judgment and for leave to withdraw the plea of nolo contendere was supported by an affidavit of the accused that he had 'never heard before of the word nolo contendere and did not know or understand its meaning, but was under the impression and believed that when he entered a plea that he was entering a plea of not guilty and that he did not intend to plead guilty,' but is innocent. The motion was denied. This was harmful error.'

In the case of State v. Febre, 156 Fla. 149, 23 So.2d 270, the defendant Febre was charged with assault with intent to commit murder in the first degree and was convicted by the criminal court of record of aggravated assault. Both the State and the defendant appealed to the Supreme Court. A motion was made by the defendant to dismiss the appeal of the State which was granted. The Supreme Court, in its opinion, said:

'An information charging assault with intent to commit murder in the first degree was filed against Edmundo Febre by the County Solicitor of Hillsborough County, Florida, and upon arraignment thereto in the Criminal Court of Record he entered a plea of nolo contendere. The Honorable L. A. Grayson, Judge, thereupon heard testimony and entered a judgment of conviction of the crime of aggravated assault and sentenced Febre to serve one year at hard labor in the County Jail of Hillsborough County, Florida.

* * *

* * *

'Counsel for Edmundo Febre moved this court to dismiss the appeal taken by the State of Florida in the case at bar and several reasons are submitted therefor. While other grounds of the motion to dismiss may have merit, we deem it necessary only to consider ground No. 2, which is, viz.:

"The transcript of record filed in this Court shows on its face that appellee was adjudged guilty by the trial court of a misdemeanor, to-wit, aggravated assault, and was given a legal sentence therefor within the statue, to-wit, twelve months imprisonment in the County jail of Hillsborough County, Florida; that therefore the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, has final appellate jurisdiction of said conviction and the same cannot be reviewed on direct appeal to this Court. See Art. V, Sec. 5, Constitution of Florida; Sec. 287, Criminal Procedure Act, [F.S.A. § 924.08]; Byrd v. State, 146 Fla. 686, 1 So.2d 624.'

'The crime of assault with intent to commit murder in the first degree, as charged in the information, embraced lesser criminal offenses. The trial court accepted the plea of nolo contendere and then proceeded to hear testimony and to ascertain therefrom the degree of guilt for which the appellee should stand convicted. It was the conclusion of the trial court, after hearing all the evidence offered by the respective parties and argument of counsel, that the appellee was guilty of the crime of aggravated assault and so held, and entered judgment against the appellee accordingly. The effect of this adjudication was to acquit the appellee of all greater offenses charged in the information. See State ex rel. Landis v. Lewis, 118 Fla. 910, 160 So. 485;...