Roberts v. State
| Decision Date | 31 May 1967 |
| Docket Number | No. 7207,7207 |
| Citation | 199 So.2d 340 |
| Parties | Nick ROBERTS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John J. Duffy, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
This is an appeal from a judgment of conviction and sentence of life imprisonment imposed in the Pinellas County Circuit Court upon an indictment charging defendant Nick Roberts, appellant here, with first degree murder.
The indictment for the capital offense was returned on January 11, 1966, charging defendant Roberts with the murder of one Joe Louis Carter by shooting him with a gun on September 10, 1965. Upon arraignment on January 20, 1966, Roberts entered a plea of not guilty. The case was set for trial on March 7, 1966, but before that date, on March 4, 1966, Roberts moved in open Court for permission to withdraw his plea of not guilty and to enter a plea of nolo contendere, which latter plea the Court accepted, only, however, after careful inquiry by the Court of defendant Roberts to establish the fact that his change of plea was not a result of any inducement, promises of leniency, or promise of probation or any other inducements offered him to influence his decision and that his entry of such plea was free and voluntary.
Thereafter, on March 7, 1966, the able Circuit Judge, Hon. Charles M. Phillips, Jr., heard sworn testimony in open Court from witnesses for the State, the defendant not caring to testify or adduce any evidence otherwise in his own behalf, and thereupon found and adjudged defendant Roberts to be guilty of murder in the first degree and accordingly sentenced him to life imprisonment.
During these entire Court proceedings, from the return of the indictment to and through March 7, 1966, defendant was represented by competent counsel, who actively participated in his behalf and who, at the conclusion of the testimony, made an earnest plea that the Court adjudicate the defendant guilty of a lesser degree of unlawful homicide.
On June 3, 1966, Roberts filed his Notice of Appeal from the judgment and sentence so entered against him. He was thereupon adjudged insolvent and the Court appointed counsel to represent him on this appeal. Defendant has had the benefit of able counsel at every stage of the proceedings, both in the lower Court and in this Court.
The sole point urged here for reversal is that, while the trial Judge properly exercised his right, if not duty, to hear sworn testimony as to the merits of the charge, even though the plea was one of nolo contendere, the finding and adjudication of first degree murder was unwarranted because the evidence was insufficient to establish premeditated design, an indispensable element of the ultimate charge; citing State v. Febre, 1945, 156 Fla. 149, 23 So.2d 270, a case with which the writer is personally familiar.
But we are summarily stymied on the threshold of considering the appeal upon the merits because of the recent decision of the Supreme Court of Florida in Smith v. State, 197 So.2d 497, opinion filed April 12, 1967, not yet published in the printed reports, and which opinion has now become final in absence of filing of petition for rehearing. In the cited case, the Supreme Court has held flatly that a plea of nolo contendere may not be received or accepted by the trial Court in response to an indictment charging a capital offense, as here. Mr. Justice Thomas, speaking for the Court, at the outset of his opinion in Smith says that the case 'presents a situation of...
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Seay v. State
...of Defendant Silva is reflected in this record. See Peel v. State, 150 So.2d 281 (Fla.App.2d 1963) and discussion in Roberts v. State, 199 So.2d 340 (Fla.App.2d 1967). We are cognizant of our earlier Smith v. State, 197 So.2d 497 (Fla.1967), holding that a plea of nolo contendere cannot be ......
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Hoffman v. Jones
...the relationship between their authority and that of this Court. Griffin v. State, 202 So.2d 602 (Fla.App.1st, 1967); Roberts v. State, 199 So.2d 340 (Fla.App.2d, 1967); and United States v. State, 179 So.2d 890 (Fla.App.3d, 1965). To allow a District Court of Appeal to overrule controlling......
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Jenrette-Smith v. State
...on the courts, something this court is powerless to do. See Hoffman v. Jones, 280 So.2d 431, 433–34 (Fla.1973); Roberts v. State, 199 So.2d 340, 342 (Fla. 2d DCA 1967). For these reasons, I dissent. 1. The provisions of section 827.071 have been renumbered by chapter 2011–220, section 15, L......
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Chatman v. State
...Court case of Smith v. State, Fla.1967, 197 So.2d 497, and a subsequent interpretation of that case by this court in Roberts v. State, Fla.App.1967, 199 So.2d 340. Those cases stand for the proposition that a plea of nolo contendere is not proper in a capital case. Petitioner urges that the......