Ramey v. State
Citation | 199 So.2d 104 |
Decision Date | 17 May 1967 |
Docket Number | No. 7391,7391 |
Parties | Johnny RAMEY, Appellant, v. STATE of Florida, Appellee. |
Court | Court of Appeal of Florida (US) |
Walter R. Talley, Public Defender, William H. Namack, III, Asst. Public Defender, Bradenton, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
The State of Florida, as appellee, has moved to dismiss this appeal upon the ground that Johnny Ramey, appellant herein, entered plea of guilty in the Court below, was adjudged guilty and sentenced, and is now attempting to appeal from said judgment, which the State contends is not reviewable by appeal. The State cites an excerpt from Gibson v. State, Fla.App.1965, 173 So.2d 766, text 768, as follows:
The case of Clayton v. State, Fla.App.1966, 188 So.2d 395, text 396, also a 3rd District Court case, is likewise cited, but it merely follows Gibson.
In the Gibson case, from which the above quotation was taken, Gibson at first entered plea of not guilty to a charge of first degree murder, later entering a plea of guilty with permission of the Court to a charge of murder in the second degree and was sentenced to life imprisonment. Gibson subsequently filed his petition under Criminal Procedure Rule No. 1, F.S.A ch. 924 Appendix contending that he was denied assistance of counsel by the trial Court, that illegal evidence was obtained from him under duress, and that he was denied a preliminary hearing. The trial Court denied such petition under C.P.R. No. 1, and Gibson appealed to the 3rd District Court. That Court took up seriatim each of the points relied upon as aforesaid, disposed of them adverse to Gibson, And affirmed the case on the merits. In the course of the opinion the Court observed:
The latter portion of the last above quotation is the passage contained in the State's motion here. But it will be noted that such statement at best is mere Obiter because the appeal there was from an order denying a petition under C.P.R. No. 1, and the appeal was affirmed on the merits, not dismissed upon any motion. We will review State ex rel. Baggs v. Frederick and Perez v. State, cited in support thereof.
In the Baggs case, the defendant Baggs had pleaded guilty to the charge of assault and battery in a Justice of the Peace Court and had then sought to appeal a judgment entered upon such plea of guilty to the Circuit Court. Under the Constitutional and Statutory provisions then obtaining, an accused upon such appeal could demand and receive trial de novo in the Circuit Court. Baggs' appeal had been dismissed by the Circuit Court upon the ground that an appeal would not lie where the accused pleaded guilty in the lower Court. Baggs filed mandamus proceedings in the Supreme Court to coerce the Circuit Judge to reinstate and try the appeal, which brought the question of his right to appeal under such circumstances directly into focus. The Supreme Court, in an opinion by Justice Fred Davis, held unanimously that he had the legal and constitutional right to appeal and receive a de novo trial in the Circuit Court even though he had entered plea of guilty in the trial Court, and Granted peremptory writ of mandamus. In the course of the opinion, the Supreme Court said:
(Emphasis supplied).
It will be observed in the Baggs opinion that No cases are cited to support what the opinion calls 'the rule' that a judgment 'entered on such a plea of guilty cannot ordinarily be reviewed by appeal'; also that even in the statement of 'the rule', questions of jurisdiction are excluded from the appeal ban. Also, said quoted provision in Baggs held the appeal there to be an exception to 'the rule' because such appeal was 'entirely statutory', an observation that will be alluded to later herein.
Thus the Baggs case, like the Gibson case, sets forth mere Obiter insofar as any applicability to the case sub judice is concerned.
In the Perez case, also cited in support of the statement in Gibson, Perez had pleaded guilty to the offense of receiving and concealing stolen property, and the judgment of conviction thereon was appealed to the 3rd District Court. That Court in disposing of the appeal, said:
'We have fully examined the record, and the extensive brief which the appellant personally prepared and filed, and conclude that no showing has been made upon which this appellate court could or should disturb the adjudication of guilt of the offense of receiving and concealing stolen property which was entered...
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