State ex rel. Wilhoit v. Wells

• Decision Date: 20 February 1978
• Docket Number: No. II-91,II-91
• Citation: 356 So.2d 817
• Parties: STATE ex rel. William M. C. WILHOIT, Relator, v. Clyde B. WELLS, as Judge of the Circuit Court of the First Judicial Circuit, State of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 817

356 So.2d 817

STATE ex rel. William M. C. WILHOIT, Relator, v. Clyde B. WELLS, as Judge of the Circuit Court of the First Judicial Circuit, State of Florida, Respondent.

No. II-91.

District Court of Appeal of Florida, First District.

Feb. 20, 1978.

As Corrected March 6, 1978.

Joe J. Harrell and W. H. F. Wiltshire of Harrell, Wiltshire, Stone & Swearingen, Pensacola, and Hugh M. Taylor, Tallahassee, for relator.

No appearance for respondent.

Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for State of Florida, real party respondent in interest.

SMITH, Judge.

Wilhoit's suggestion for writ of prohibition urges that the trial court in this criminal case committed jurisdictional error (1) by rejecting Wilhoit's nolo contendere pleas, which the court previously accepted, and by reinstating Wilhoit's not guilty pleas without his consent and putting him to trial and so twice in jeopardy; (2) by failing to perform the court's agreement which induced Wilhoit's nolo contendere pleas, to the effect that adjudication of guilt would be withheld on three counts and probation would be granted on all four; and (3) by failing to grant Wilhoit a speedy trial as prescribed by Fla.R.Crim.P. 3.191. Our rule nisi prevented a December 1977 trial on these four charges, Fla.R.App.P. 4.5 d. We declined to issue a rule in respect to a fifth charge.

Two informations charge that Wilhoit, a Pensacola physician, sexually assaulted four women who were his patients and who were anesthetized or otherwise physically helpless; and that he later swore falsely to a grand jury that he had not had sexual intercourse with one of them. Three counts in the circuit court's case 77-1427 charged involuntary sexual battery, as did count one in case 77-1428; count two in number 77-1428 charged perjury. Wilhoit was taken into custody March 14, 1977 on an indictment which became number 77-1428 and so was entitled to trial on or before September 12, absent preventing circumstances; and he was taken into custody March 24, 1977 on an indictment which became 77-1427, and was entitled to trial on or before September 22, unless Rule 3.191 intervened.

The sexual battery charges were severed from the perjury charge and consolidated with each other for trial beginning September 6, 1977, within the 180-day period for speedy trial prescribed by Rule 3.191. No definite trial date was set for the perjury charge. On September 2, 1977, Friday before the Labor Day weekend preceding the trial scheduled on Tuesday, the 6th, the prosecutor, defense counsel, and the trial judge met and discussed disposing of all the charges on pleas of nolo contendere. The colloquy leading to an apparent agreement was reported and is set forth in an appendix to this opinion. In substance, the agreement was derived as follows: The prosecutor reported having consulted the complaining witnesses, Wilhoit's patients, who were said to have no objection to probationary sentences on the sexual battery counts. The prosecutor urged imprisonment on the perjury count; but in consideration of Wilhoit's loss of standing in the community, and his almost certain loss of his medical license, and the acquiescence of On the morning of September 6, before the scheduled proceedings in open court, the alleged victim mentioned in count one of case 77-1428 objected to the prosecutor that she "wanted the defendant to make an open court admission that he committed this sexual battery." As a result, the anticipated nolo contendere plea was not entered, and the court stated that charge "will be set for trial necessarily at a later date because we excused the jury for this day." Concerning the other counts of sexual battery and perjury, the prosecutor announced his understanding that pleas of nolo contendere would be entered and that, none of the victims having objected to a probationary sentence, the court would withhold adjudication on those counts and place Wilhoit on probation. The prosecutor recommended that Wilhoit be imprisoned for perjury but stated he understood that "the court is inclined to place the defendant on probation on that count also but will at a later date determine . . . whether he will be adjudicated guilty on that count."

the complaining witnesses, the prosecutor did not oppose withheld adjudication and probationary sentences on the sexual battery counts. The court stated that it would grant probation on all counts, withhold adjudication on the sexual battery counts, and consider the transcripts of Wilhoit's grand jury testimony and other presentence submissions in determining whether to adjudicate Wilhoit guilty of perjury. On that note the court agreed to excuse the venire and witnesses scheduled to appear on September 6 and at that time to receive the nolo contendere pleas so conditioned.

Rule 3.172, Fla.R.Crim.P., requires that the trial court, before accepting a nolo contendere plea, must determine "that the plea is voluntarily entered and that there is a factual basis for it" and must address the defendant personally to determine that he understands the consequences of his plea and "(t)he complete terms of any plea agreement, including specifically all obligations the defendant will incur as a result." Rule 3.172(a), (c)(vii). The rule further provides:

(f) No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements and determinations required by this Rule. Until that time, it may be withdrawn by either party without any necessary justification.

Inquiry satisfying Rule 3.172 was made of Wilhoit, who confirmed his understanding that adjudication of guilt would be withheld on the three sexual battery counts, that he "could be adjudicated on the perjury count," and that on all those counts he would be placed on probation. The prosecutor recited the evidentiary details of the state's case, to the effect that each of the alleged victims were administered "some type of shot" or "a gaseous substance in the treatment room," and woke up "in the defendant's office when he was having sexual intercourse with her." The court inquired whether Wilhoit wished to "contest any of the facts" recited, and his counsel interjected that he would "present this information and any counter-position we have" in a written submission. The court then stated:

(T)he court is going to at this time determine that the plea has been freely and voluntarily entered, subject only to the agreement as has been stated by (the prosecutor) and that the defendant is intelligent and alert sufficient to understand the consequences of that plea and I'm going to accept the pleas of nolo contendere at this time on the three sexual battery counts and the perjury count. At this time I'm going to withhold adjudication of guilt on all of the counts to which the defendant has tendered a plea and I'm going to order a presentence investigation and . . . the transcript of all the testimony . . . and also . . . the state and the defense will submit a narrative report of their expert witnesses' testimony and the court will also consider that in determining the acceptance of his plea also the sentence to be imposed.

Then, this colloquy:

DEFENSE: Your Honor, may I summarize that so that I make sure I have got COURT: At this time.

it. There will be a withheld adjudication of guilt (on the sexual battery charges in case 77-1427), and acceptance of the plea of nolo contendere on all charges (except the sexual battery charge in case 77-1428, continued for trial).

DEFENSE: At this time, yes, sir.

COURT: Right.

DEFENSE: And this will be probation, as well.

COURT: That's the understanding. The court would not be bound by that but then would give you an opportunity to withdraw your plea.

Immediately thereafter, in a reported hearing in chambers, the prosecutor expressed concern over the running of the speedy trial period on the remaining sexual battery count in case 77-1428. The prosecutor asked the court to extend the period for trial under Fla.R.Crim.P. 3.191(f) because the anticipated plea and disposition on that plea were prevented by the unanticipated and "exceptional circumstance" of a late objection by the complaining witness, the alleged victim. The court announced that exceptional circumstances did justify an extension of the time for trial. No written order was entered, nor was the time for trial extended for a certain period; but court set the case for trial October 24, 1977.

Wilhoit later filed a motion for "specific performance" of the unfulfilled September 2 agreement for disposition of the sexual battery charge in case 77-1428, and for discharge on that count because no trial was had within 180 days. The court on October 6, 1977 denied those motions and reconfirmed the trial date of October 24, 1977, solely for the sexual battery count in case 77-1428. Wilhoit then moved to continue the October 24 trial, in part because Wilhoit wished to seek a writ of prohibition in this court. That motion was granted.

In the meantime, the agreement for disposition of the other counts on nolo contendere pleas also began to unravel. In the aftermath of the September 6 change of pleas in open court, of which photographs and stories were featured in the press, the other three complaining witnesses reflected on the events and told the prosecutor that they too objected to the agreed disposition of the cases. One signed an affidavit stating she had no objection to a probationary sentence of fifteen years, "but only if he pleads guilty and is adjudged guilty." Another's affidavit stated that Wilhoit should spend at least one year in jail for each victim and that she previously did not object to probation because "I thought he was going to admit his guilt." The third expressed the same view, adding that Wilhoit should go to prison for five years and never again practice medicine. The prosecutor filed those affidavits with a motion...