Petition of Broom

• Decision Date: 12 October 1964
• Docket Number: No. 43370,43370
• Citation: 168 So.2d 44,251 Miss. 25
• Parties: Petition of Essie Lee BROOM for Writ of Error Coram Nobis or New Trial.
• Court: Mississippi Supreme Court

Page 44

168 So.2d 44

251 Miss. 25

Petition of Essie Lee BROOM for Writ of Error Coram Nobis or

New Trial.

No. 43370.

Supreme Court of Mississippi.

Oct. 12, 1964.

L. H. Rosenthal, Jackson, Claudia Shropshire, Detroit, Mich., Bruce C. Waltzer, New Orleans, La., George W. Crockett, Jr., Detroit, Mich., for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

ETHRIDGE, Justice.

Essie Lee Broom was indicted in the Circuit Court of Leflore County on November 8, 1962, for the felony of obtaining money under false pretenses. On November 12 she was arraigned and entered a plea of not guilty. On November 26 she changed her plea to guilty, and the circuit court sentenced her to two years imprisonment, suspended it, and placed her on probation for two years, subject to certain conditions.

The petition contains the following averments: Petitioner is a Negro woman, about 25 years of age, unmarried, of 'limited formal education,' and the mother of six young children. Although she changed her plea to guilty, she was innocent of the charge against her, and 'at no time prior to or during any of the aforesaid court proceedings was Petitioner informed of her right to counsel under the Constitution of Mississippi and the Federal Constitution; nor was Petitioner represented by counsel at any time; nor was counsel appointed for or offered to Petitioner; nor did Petitioner waive her right to counsel.'

On May 18, 1964, petitioner was rearrested, and an order was entered, revoking her probation for not complying with its conditions, and amending her sentence to one year. Petitioner is presently in the state penitentiary. She charges: 'At no time during the revocation of her probation nor the amendment of her sentence; nor at any other time was Petitioner informed of her right to counsel under the Constitution of Mississippi and the Federal Constitution; nor was Petitioner represented by counsel at any time; nor was counsel appointed for or offered to Petitioner; nor did Petitioner waive her right to counsel.' Despite diligent efforts on the part of her relatives, it was not possible, she says, to obtain the voluntary services of any member of the Mississippi State Bar to represent her 'to appeal her conviction and/or to raise the aforesaid constitutional issues' on her behalf. However, in this matter she is represented by a Mississippi attorney and four members of the Michigan bar.

The petition charges systematic exclusion of Negroes from jury service; denial of equal protection and due process, in that 'at no time was she advised of her right to counsel nor was counsel appointed in her behalf'; and revocation of probation without due process, because it was without notice and hearing.

The prayer is that petitioner be granted leave to apply to the Circuit Court of Leflore County, or this Court, for a writ of error coram nobis or motion for new trial; and that bail be fixed for her, and a new trial granted. The document is sworn to by petitioner's mother, who states that Essie Lee Broom 'is presently confined at Parchman Penitentiary, and the attorneys retained by me have been unable to see her.' Exhibits to the petition are the indictment, pages from the general docket of the circuit court, the minutes reflecting the plea of not guilty, the change of plea to guilty, the sentence, and the order revoking probation.

The state did not file an answer, or any affidavits in denial of the allegations of the petition on the merits. Its motion to dismiss asserts, 'On its face the petition does not lie.'

Two questions are involved: (1) Was the petition properly filed in this Court under Miss.Code 1942, Rec., section 1992.5, where the judgment has not been affirmed previously by this Court? (2) If not, what remedy, if any, is available to petitioner?

First. In 1952 the legislature enacted what is now Code section 1992.5. Miss.Laws 1952, ch. 250. Section 2 states, 'In all cases wherein a judgment of conviction in a criminal prosecution has been affirmed on appeal by the supreme court, no petition for the writ of error coram nobis shall be allowed to be filed or entertained in the trial court unless and until' a petition shall have been presented to the Supreme Court for an order allowing the filing of such petition in the trial court. By its plain terms, the statute applies only where a judgment of conviction has been affirmed by this Court. Lang v. State, 230 Miss. 147, 169, 92 So.2d 670 (1956); Smith v. State, Miss., 155 So.2d 494 (1963). Petitioner's conviction has not been affirmed, and she did not appeal from it. Hence section 1992.5 is not applicable. The state's motion to dismiss the petition in this Court must be sustained. Cf. Rogers and Thornhill v. Jones, 240 Miss. 610, 128 So.2d 547 (1961).

Second. Due process requires adequate post conviction remedies. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The jurisprudence of this state amply provides them. Smith v. State, Miss., 155 So.2d 494, 496 (1963). Since section 1992.5 does not apply, and there is an established, appropriate procedure for attacking in the trial court a judgment of conviction, not previously affirmed by this Court, we think it is necessary and proper in disposition of this matter again to define the nature of petitoner's remedy, if she is entitled to any relief under the facts and law.

The appropriate procedure would be by a simple motion in the court which imposed the sentence to vacate, set aside, or correct the sentence, and to order a new trial; or alternatively, by a petition in the trial court for a writ of error coram nobis for similar relief. The former is simpler, but the latter is available also, and in practice the virtual equivalent. Code section 1992.5(1) recognizes both. In either event, the sentencing court, familiar with preceding facts, would hear the motion or petition and evidence, and dispose of it as the facts indicate.

In Miss. & Tenn. R. R. v. Wynne, 42 Miss. 315 (1868), it was contended the only method should be by writ of error coram nobis. The court held, however, that over 'a long series of years as shown by numerous precedents,' the Mississippi courts 'have adopted and adhered to a different practice, and have in a great many instances allowed errors of fact committed in this court to be corrected upon motion.' This practice 'has been both simple and convenient.' In Fugate v. State, 85 Miss. 94, 37 So. 554 (1904), defendant presented his petition to the circuit court, described in the opinion as one for coram nobis, or a motion for new trial. After consideration on the merits, the petition was dismissed, and this court affirmed.

In Carraway v. State, 163 Miss. 639, 141 So. 342 (1932), where this court affirmed a conviction, defendant filed a petition for coram nobis with the circuit judge. It was observed that the writ was practically obsolete, and: 'With us the actual issuance of the writ is unnecessary, for this court has more than once said that the relief, for the granting of which the writ of error coram nobis lies, can be granted on a motion or petition, without the issuance of the writ.' It was held the denial of a writ is not a final judgment, which would be appealable, but simply the refusal of a remedial writ.

Corry v. Buddendorff, 98 Miss. 98, 54 So. 84 (1910), affirmed an order dismissing a petition for coram nobis. The court said: 'The writ of error coram nobis has become obsolete in many of the states, and it is rarely resorted to in our own, being superseded by the more speedy remedy by motion. But we find either is permissible under our practice.' Buckler v. State, 173 Miss. 350, 161 So. 683 (1935), also involved a petition for coram nobis, but recognized the alternative procedure of a simple motion to vacate the judgment. It held denial of the writ was not appealable, but a petitioner had a further remedy by application to a judge of this Court. See Dolan v. State, 195 Miss. 154, 13 So.2d 925 (1943).

In Wetzel v. State, 225 Miss. 450, 76 So.2d 194 (1954), petitioner refiled a petition for coram nobis in the Supreme Court, after it had been denied by the trial court, and while his appeal from his original conviction was still before the Supreme Court. The court considered Wetzel's petition on its merits, 'as being addressed to the inherent constitutional powers of the Court in its revisory capacity with reference to a case pending before it, and also as being within the orbit of Code Section 1657.' It was noted that section 1992.5 applies only after a conviction has been affirmed. Wetzel and other cases held that coram nobis could not be invoked for newly discovered evidence going to the merits of the issues tried in the court below.

Lang v. State, 230 Miss. 147, 163, 92 So.2d 670 (1957), extended the motion or writ procedure, by making it available for newly discovered evidence, if it would 'probably produce a different result or induce a different verdict.' Lang v. State, 232 Miss. 616, 624, 100 So.2d 138...