Sampson v. State
| Decision Date | 20 December 1963 |
| Docket Number | No. 4093,4093 |
| Parties | Arthur V. SAMPSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Joseph G. Spicola, Jr., Public Defender, Mrcus A. Wilkinson, III, Asst. Public Defender, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
Appellant, convicted upon a plea of guilty to the abominable and detestable crime against nature, was sentenced to five years' imprisonment in February of 1963. On April 17, 1963, appellant, invoking Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, moved to vacate and set aside the sentence. Five days later the motion was denied and this appeal ensued.
The record of the original criminal proceedings reveals that pursuant to an information filed on November 16, 1962, the appellant, appearing in his own and proper person, was arraigned and pleaded not guilty on November 1, 1962. On January 7, 1963, appellant, again appearing in proper person, withdrew his earlier plea and entered a plea of guilty. On February 4, 1963, appellant was adjudged guilty and sentenced.
As aforesaid, on April 17, 1963, the appellant moved to vacate the sentence alleging that at the time of his conviction he was indigent without funds to retain counsel; that the lower court refused to appoint counsel and that he was therefore forced to enter a plea without the assistance of counsel.
On April 22, 1963, the lower court entered an order denying the motion, which ordered recited:
'The above entitled matter having come on for hearing this date on Motion filed by the defendant, claiming infringement of his rights under the Federal and/or State Constitutions and consequent illegal imprisonment and the Court having duly considered the Motion, after examining the files and records of this cause, and it appearing unto the Court that the defendant is legally imprisoned, it is therefore.
'ORDERED and ADJUDGED that the defendant's Motion for relief is herein and hereby denied.'
The single issue presented by this appeal is whether, under the aforementioned circumstances, the lower court erred in summarily denying appellant's motion.
The authority for summary disposition of motions under Criminal Procedure Rule No. 1 is found in the provisions of the Rule that:
'Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. * * *'
Accordingly, if, upon examination of the motion, it is found defective in form or substance and insufficient to state a prima facie case entitling the prisoner to relief, summary disposition is proper. Savage v. State, Fla.App.1963, 156 So.2d 566; King v. State, Fla.App.1963, 157 So.2d 440. Similarly, if upon examination, the motion is sufficient but the 'files and records in the case' conclusively refute the allegations or otherwise conclusively preclude relief, summary denial is proper. Absent one of these requisites, summary denial is improper and the provisions of the Rule for notice, hearing and determination of the issue must be followed. King v. State, Fla.App.1963, 157 So.2d 440; Crosby v. State, Fla.App.1963, 157 So.2d 867.
In the instant case there is no suggestion that the files and record preclude relief. The record on appeal contains a letter from which the State draws the implication that appellant was represented by counsel, but the letter was filed below after appellant's motion and is not part of the 'files and record,' contemplated by the Rule's provision for summary disposition. While a return, ex parte affidavit or document submitted in opposition to a Rule 1 motion can serve to create as issue of fact, it cannot, at this initial juncture, be relied upon as determinative of a factual issue. To permit consideration of extra-record documents would be, in effect, to permit a hearing without all of the attendent requisites of such hearing. See United States v. Salerno, 290 F.2d 105, (2d Cir. 1961); Jones v. Cunningham, 313 F.2d 347, (1 Cir. 1963). Aside from sustaining appellant's...
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Dixon v. State, 4354
...to the files and records in the cause, nor, of coures, afford the movant a hearing on his claim. Savage v. State, supra; Sampson v. State, Fla.App.1963, 158 So.2d 771; Dykes v. State, Fla.App.1964, 162 So.2d 675. Cf. State v. Weeks, Fla.1964, 166 So.2d 892, opinion filed March 4, 1964. Acco......
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Phillips v. State, 4599
...(1963). The motion contains no allegations of fact, nor even conclusory allegations, that imply negation of waiver. See Sampson v. State, [Fla.App. 158 So.2d 771], supra. In fine, upon the most liberal reading of the motion it fails to demonstrate that appellant's case 'was one in which the......
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Lawson v. State
...findings of fact and conclusions of law with respect thereto.' In discussing this rule a District Court of Appeal in Sampson v. State, 158 So.2d 771 (Fla.App.2d 1963) 'Accordingly, if, upon examination of the motion, it is found defective in form or substance and insufficient to state a pri......
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Smith v. State, 64-508
...163 So.2d 305; Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148. As stated in the recent case of Sampson v. State, Fla.App.1963, 158 So.2d 771, at page 774: * * * * * * ' A cursory examination of the numerous allegations in the motion reveals that many are merely conclusi......