Thompson v. State, 64-691

• Decision Date: 25 May 1965
• Docket Number: No. 64-691,64-691
• Citation: 176 So.2d 564
• Parties: Herbert THOMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 564

176 So.2d 564

Herbert THOMPSON, Appellant, v. STATE of Florida, Appellee.

No. 64-691.

District Court of Appeal of Florida, Third District.

May 25, 1965.

On Rehearing July 6, 1965.

Robert L. Koeppel, Public Defender and Patrick A. Podsaid, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.

Before BARKDULL, C. J., and TILLMAN PEARSON and CARROLL, JJ.

TILLMAN PEARSON, Judge.

The appellant, Herbert Thompson, was indicted for the crime of first-degree murder and entered a plea of not guilty to the charge. Thereafter, during the progress of the trial, he voluntarily withdrew his plea of not guilty and entered a plea of guilty. The second plea was accepted by the trial court, and he was found guilty with recommendation of mercy. After adjudication he was sentenced to the State penitentiary for life. Subsequently, the appellant filed a motion in the trial court pursuant to Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix to vacate his conviction and sentence. His motion was denied without formal hearing upon a finding by the trial court that the grounds of the motion were legally insufficient.

The first basis upon which the appellant seeks relief is his statement that he was arrested without a warrant and without probable cause. We find that neither the motion nor the record show that the method of appellant's arrest resulted in his being denied the substance of a fair trial. Cf., Caputo v. State, Fla.App.1956, 173 So.2d 745 [opinion filed 4/6/65.].

Appellant's second basis for the relief claimed is obviously framed in an attempt to bring his situation within the purview of the decision of the Supreme Court of the United States in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). We reject that contention on the basis of our recent holding that the decision in Escobedo v. State of Illinois, supra, has no retroactive effect in the State of Florida. See Bell v. State, Fla.App.1965, 175 So.2d 80 [filed May 18, 1965].

The third of appellant's grounds is that he was induced to confess by illegal interrogation, physical force, and threats. ¹ The record reveals that the appellant first pled not guilty; then two separate statements of the appellant were admitted in evidence, each one over the objection of the defendant; then the appellant changed his plea to guilty. This record is consistent with appellant's allegation that he would not have pled guilty except for the admission of an alleged confession.

The record neither sustains nor refutes appellant's allegation regarding the method used to procure the confession. It is clear that the trial judge considered to objections then made to the confession. At the trial appellant was represented by counsel of his own choosing. With the advice of counsel, appellant chose not to await the outcome of the trial and appeal the finding of the trial judge that the statements were admissible. Upon his election to plead guilty, he withdrew his case from the jury. Thus, no issue was presented to them as to the weight and value to be given to the alleged confession as evidence. The appellant's conviction was based upon his plea of guilty. It may be said with confidence that the appellant, with the advice of counsel, hoped for and did gain the advantage of a sentence less than the maximum. His assertion now in substance is that the trial judge improperly ruled that the confession was voluntary and that because of that ruling (which he has aborted by his change of plea) he pleaded guilty and that the courts should now relitigate the question of the voluntariness of his alleged confession.

The question of the availability to the appellant of this ground under the circumstances of this case is affected by questions of policy. In essence the decision is whether the courts will regard a conviction upon a plea of guilty which may possibly have been induced by a forced confession as so heinous a pnossibility that they will demand a relitigation of the issue after its initial detemrination in the trial court and its subsequent withdrawal by the plea. We think that we must be that careful of human liberty and answer the question in the affirmative.

The dangers of 'trial by confession' have been too frequently demonstrated by governments other than our own to need elaboration. The record here does not demonstrate that the appellant's charges are false. We are not presented with a transcript of the evidence before the trial judge upon his initial determination of the voluntariness of the confession. If the record exists it may dispose of the issue now presented by the appellant. If no record exists then the trial judge must hear the evidence on the issue.

In Williams v. State, Fla.App.1965, 174 So.2d 97 [opinion filed 3/31/65, not yet reported] a different decision has been reached. We point out these distinguishing facts between the case under consideration and the Williams case. In Williams v. v. State, supra: (1) the appeal was after a full hearing at which evidence was received on the motion; (2) it was found that there was no evidence that the confession induced the plea of guilty (a conclusion we cannot reach in the instant case); (3) the confession was not offered in evidence; (4) it was found that the evidence available to the prosecutor, apart from the confession was sufficient of itself to cause the appellant and his counsel reasonable apprehension concerning the possibility of the death penalty. See also Taylor v. State, Fla.App.1964, 169 So.2d 861, which is likewise distinguishable.

Appellant's fourth ground claims incompetence of his counsel. This ground is not available to him because he selected and employed the counsel who represented him. Amaral v. State, Fla.App.1965, 171 So.2d 549.

The fifth and sixth grounds of the motion are not relevant to the question of whether appellant was deprived of the substance of a fair trial.

The order denying the motion for relief pursuant to Criminal Procedure Rule 1 is reversed and the cause remanded with directions to grant the appellant a hearing upon his allegation that he was induced to confess by illegal interrogation, physical force, and threats. See Gillyard v. State, Fla.App.1965, 175 So.2d 798 [opinion filed on rehearing granted 4/6/65].

Reversed.

Before TILLMAN PEARSON, CARROLL and BARKDULL, JJ.

ON REHEARING

PER CURIAM.

On petition of the appellee, the State of Florida, we granted rehearing. In the opinion of this court filed May 25, 1965, to which the petition for rehearing was directed, ...