Ray v. State, 38760

• Decision Date: 10 December 1969
• Docket Number: No. 38760,38760
• Citation: 231 So.2d 813
• Parties: Jetson RAY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 813

231 So.2d 813

Jetson RAY, Petitioner, v. STATE of Florida, Respondent.

No. 38760.

Supreme Court of Florida.

Dec. 10, 1969.

Rehearing Denied Jan. 20, 1970.

Jetson Ray, in pro. per.

Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.

ERVIN, Chief Justice.

Petitioner Ray seeks release from the State Prison by application for a writ of habeas corpus.

The factual background of the present controversy is set forth in this Court's opinion in Ray v. State (1967), 200 So.2d 529. The following is a summary of the critical facts established in that decision: Petitioner was arraigned in the Orange County Criminal Court of Record on April 14, 1945, on Information No. 28734, which charged him with burglary. After a witness, Mrs. Kinker, testified for the State, Petitioner, without the assistance of counsel, pleaded guilty, was adjudged guilty and sentenced to life imprisonment. After a short recess, the judgment and sentence under Information No. 28734 was set aside upon oral motion by the prosecuting attorney for the State. Petitioner was then again arraigned, this time under Information No. 28735, charging him with burglary and assault arising out of the identical transaction which formed the predicate for the charge set forth in the first information. Petitioner again pleaded guilty without the assistance of counsel, was adjudged guilty and again was sentenced to life imprisonment. On June 1, 1945, an order of nolle prosequi was entered on Information No. 28734, the information on which the first conviction was based. It is not precisely clear from the record as to the prosecuting attorney's motive for attempting to nol-pros proceedings under the first information, but from the allegations set forth in the petition, presumably the burglary charge contained in the first information would not sustain a life imprisonment sentence.

In the first Ray case, we set aside the conviction on Information No. 28735 and ordered a new trial on the basis Ray was not informed of his right to counsel and did not have the assistance of counsel as required by the retroactive application of Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733. However, we noted therein that the facts established by the Commissioner's findings attributed the defect of failure to afford counsel to proceedings under both informations. In issuing our mandate in that case, we made the following observation:

'Any subsequent trial of this petitioner on the charge described by Information #28735 will be subject to any defenses available to the accused at the time of his original trial on this information in the light of his prior conviction under Information #28734 which was vacated on the State's motion and subsequently nolprossed.' (200 So.2d at 530.)

Subsequent to the issuance of our mandate in Ray v. State, supra, Petitioner was retried on the charge set out in Information No. 28735. Trial was held in the Orange County Criminal Court of Record on January 17 and 18, 1968. The jury returned a verdict of guilty as charged and Petitioner was adjudged guilty by the court and sentenced to life imprisonment. Petitioner appealed his conviction to the District Court of Appeal, Fourth District, and that court affirmed the conviction in a per curiam decision. See 222 So.2d 498.

Prior to retrial on the merits, Petitioner's court-appointed counsel filed a motion to quash on the basis former jeopardy attached when Petitioner's guilty plea was accepted to the charge set out in Information No. 28734 and the subsequent attempt by the State to set aside this information and try Petitioner on the charge contained in Information No. 28735 violated the prohibition against double jeopardy. See U.S. Const., Amendments; Fla.Const.1885, Declaration of Rights, Section 12, F.S.A.

This jurisdiction adheres to the general rule that a plea of guilty entered to a valid criminal charge in either an indictment or information in a court of competent jurisdiction does, upon acceptance, raise the bar of former jeopardy against another prosecution for an offense based on the same transaction. See Reyes v. Kelly (Fla.App.1967), 204 So.2d 534, reversed on other grounds, Fla., 224 So.2d 303. There can hardly be any dispute in the present case that a single transaction precipitated the charges set forth in both informations. Hence, under the general rule the State's attempt to nol-pros Petitioner's conviction under the first information and prosecute him anew under the second information constitutes a brutum fulmen. See Reyes v. Kelly, 224 So.2d 303.

The State in its return does not challenge the general rules stated above. Rather, the thrust of the State's return is that

'* * * if (Petitioner) had the right to invoke the retrospective Gideon rule in order to have his judgment and sentence vacated, then we (State) can also invoke and rely on that retrospective Gideon rule to vitiate the prior proceeding on information #28734 so that the same cannot under the applicable rules of law be made the basis for a defense of former jeopardy.'

The State's contention falls wide of the mark. While we acknowledge and adhere to the principle that a plea of former jeopardy cannot be based on void proceedings, we are aware of no commanding authority to the effect that the State's failure to afford the assistance of counsel in cases such as the present renders the proceedings void at the behest of the State, as opposed to voidable only upon proper challenge by the accused. Cf., ...