Skipper v. State
| Decision Date | 27 March 1942 |
| Citation | 150 Fla. 259,7 So.2d 128 |
| Parties | SKIPPER v. STATE. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Bay County; Ira A Hutchinson, judge.
Clyde E Mayhall, of Marianna, and J. M. & H. P. Sapp, of Panama City, for appellant.
J. Tom Watson, Atty. Gen., Millard B. Conklin, Asst. Atty. Gen., and Woodrow M. Melvin and Kenneth Ballinger, Sp. Asst. Attys. Gen., for appellee.
On August 7, 1941 Tommie Richter and Carl Armstrong were informed against for the crime of breaking and entering a certain designated building with the intent to commit a felony, to-wit, grand larceny. The information, consisting of a single count alleged further that H. L. Skipper was then and there personally and feloniously present on August 1, 1941, at and before the commission of the said felony and did aid, abet encourage and procure Tommie Richter and Carl Armstrong to commit the said felony.
The record discloses that the defendants Tommie Richter and Carl Armstrong, upon arraignment on the aforesaid information, entered pleas of not guilty, while H. L. Skipper, when arraigned, entered a plea of guilty to the crime charged in the information. Tommie Richter and Carl Armstrong were placed upon trial before a jury, and, after all the testimony was adduced, argument of counsel heard and the jury instructed upon the law of the case by the trial court, the jury rendered a verdict of not guilty in their behalf.
On October 4, 1941, H. L. Skipper filed a motion to withdraw his plea of guilty and in lieu thereof file or tender a plea of not guilty to the information charging the crime of breaking and entering. The record fails to set forth the contents or grounds of the motion to withdraw the plea of guilty formerly entered. There is nothing in the record to show that evidence was adduced in support of the motion or that the motion was sworn to. We are left to conjecture as to the grounds or basis of the motion to withdraw. The record recites:
'The defendant filed a motion to withdraw his plea of guilty and enter plea of not guilty, this motion was denied and exception noted.
'The defendant then filed motion in arrest of judgment, and same was denied and exception noted.'
The trial court denied the motions to withdraw and adjudged H. L. Skipper guilty of the crime of breaking and entering and sentenced him to serve a period of two years at hard labor in the State Prison for the said crime. From said judgment and sentence an appeal has been perfected to this Court and two reasons submitted for a reversal of the judgment.
This information is, viz.:
'L. D. McRae, as State Attorney for the 14th Judicial Circuit of the State of Florida, prosecuting for said State in the County of Bay, under oath informs the Court that Tommie Richter, and Carl Armstrong on the 1st day of August, 1941 in the County, and State, aforesaid, unlawfully, did break and enter a building there situated, to-wit, an Office building, the property of Long Beach Resort, Inc., a corporation, with the intent to commit a felony, to-wit, Grand Larceny, and that H. L. Skipper was then and there personally, and feloniously present on said date at and before the commission of said felony and in said county, and state, and did then and there aid, abet, encourage, and procure him, the said Tommie Richter and him, the said Carl Armstrong, the aforesaid felony in the manner and form alleged, to do and commit.
'Contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Florida.'
One of the questions for adjudication is whether or not the trial court abused its discretion in overruling and denying the motion of the defendant to withdraw his plea of guilty previously tendered and to file in lieu thereof a plea of not guilty to the information. It is settled law that such matters are addressed to the sound judicial discretion of the trial court and will not be reversed unless an abuse of discretion is shown. The burden of showing error rests upon the appellant. The record fails to set out the motion or the grounds of the motion, or show whether or not the same was sworn to and supported by other affidavits, or that evidence was adduced in support of the motion and was before the lower court at the time that the order of denial was entered. We do not feel justified in holding that the lower court committed reversible error in denying the motion to withdraw his plea of guilty under the circumstances, the appellant not being deprived of an opportunity to place in the record the reasons for the withdrawal of his plea of guilty. The bare motion is not supported by testimony nor is it found in the record. The ruling of the trial court is sustained on the authority of Sinclair v. State, 133 Fla. 77, 182 So. 637.
It is next contended that the lower court erred in finding appellant guilty (notwithstanding the previously tendered plea of guilty) under the aforesaid information and by sentencing him to confinement in the State Prison at hard labor for two years after the trial court on the receipt of a verdict by a jury of not guilty rendered in behalf of Tommie Richter and Carl Armstrong had entered in their behalf a judgment of acquittal as sustained by the record. The case of Bass v State, 121 Fla. 208, 163 So. 485, is cited to sustain appellant's contention. The indictment is not set out in the case last cited and the case was here reversed because of the failure to give a requested charge. Likewise Neumann v. State, 116 Fla. 98, 156 So. 237, is cited. The challenged counts in the information in the latter case were drafted under Section 7110, C.G.L. The language employed by this Court therein demonstrates that it fails to sustain appellant's...
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...it makes no difference whether the principal in the first degree has been convicted or is amenable to justice. In Skipper v. State, 1942, 150 Fla. 259, 7 So.2d 128, the Supreme Court stated a contention that a conviction of the persons charged as principals was essential to sustain the vali......
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...Regina v. Wallis, 91 Eng.Rep.R. 294; King v. Taylor and Shaw, 168 Eng.Rep.R. 283; Brown v. State, 28 Ga. 199, 217; Skipper v. State, 150 Fla. 259, 7 So.2d 128, 129, 130; State v. Wilson, 235 Iowa 538, 17 N.W.2d 138, 140; Id., Iowa, 19 N.W.2d 232, 239; Christie v. Commonwealth, 193 Ky. 799, ......
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...committed the felony, and such was the law in Florida as early as the case of Montague v. State, 17 Fla. 662. Also, see Skipper v. State, 150 Fla. 259, 7 So.2d 128.' Notwithstanding the enactment of Section 776.011 in 1957, appellant contends the early former practice of specifying in the i......
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