Tolar v. State

• Decision Date: 07 March 1967
• Docket Number: No. 806,806
• Parties: Roosevelt TOLAR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1

196 So.2d 1

Roosevelt TOLAR, Appellant, v. STATE of Florida, Appellee.

No. 806.

District Court of Appeal of Florida, Fourth District.

March 7, 1967.

Roosevelt Tolar in pro. per.

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

BARNS, PAUL D., Associate Judge.

This is an appeal from a final judgment denying appellant's post-conviction motion to set aside judgments and sentences of life imprisonment on three informations charging robbery and conspiracy to rob. We find error and reverse.

State v. Tolar, Case No. 97405. In this case the record shows that the jury found the defendant guilty as charged in 'both counts'. The first count of the information charged that the defendant conspired with others, who were not defendants, 'to commit the felony of robbery in the following manner: by robbing, stealing, and taking away from the person and custody of Ernest Parham by force, violence, assault and by putting in fear lawful currency of the United States of America on June 2, 1964. * * *'

The second count of the information charged that the defendant, Roosevelt Tolar and Johnnie Williams, Jr., on June 2, 1964, 'did then and there unlawfully and feloniously rob, steal, and take away from the person and custody of Ernest Parham by force, violence, and assault, and putting in fear' $702.19.

The jury found Tolar guilty of both counts, and upon being adjudged guilty of 'conspiracy' and 'robbery' 'as charged in the first and second counts', a life sentence was imposed.

Section 833.04, F.S.A. (Laws 1957, c. 57--383, § 2), limits punishment for conspiracy to commit a felony not punishable by 'death or imprisonment for life' (c. 57--383, Laws 1957) to not 'more than one-fourth of the penalty or term which could have been imposed if the felony conspired to be committed had actually been committed * * *.' However, § 813.011, F.S.A., prescribes that one convicted of robbery of 'money or other property which may be the subject of larceny, shall be punished by imprisonment in the state prison for life or for any lesser term of years * * *.'

Since the court imposed a sentence of life imprisonment for robbery, the penalty for conspiracy is not material at this time.

State v. Tolar, Case No. 97425. In this case the information contained four counts against the defendant, but the jury's verdict only found the defendant guilty of 'All Count 3' which count charged robbery of $337.33 from one Walker on May 21, 1964. The court adjudged the defendant guilty of 'conspiracy; robbery; aggravated assault' as charged in the 'first, third and fourth counts' and sentenced the defendant to imprisonment 'during the term of your natural life' on September 21, 1964.

The record does not support the adjudication of guilt and sentence on the first count charging conspiracy and on the fourth count charging an aggravated assault, and such action seems erroneous since the verdict of guilty was only on count three.

State v. Tolar, Case No. 97472. In this case, the defendant entered a plea of guilty to count three of the information charging robbery on June 23, 1964, of one Maroon of $60.90 by the defendant, Tolar, and two others, named Rhoden and Maize. On October 19, 1964, the court adjudged the defendant guilty of robbery as charged in count three and sentenced him to life imprisonment, said term to run concurrently with the 'sentence in Case Number 97425.'

At all the foregoing proceedings the defendant had the Public Defender as his counsel, but on this appeal taken by the defendant, pro se, the Public Defender was dismissed as his counsel at the defendant's request and he has not since been represented by counsel.

Post-conviction motions for relief collaterally attacking judgments and sentences under Criminal Procedure Rule No. 1 are basically in the nature of writs of error coram nobis. The federal counter-part to Criminal Procedure Rule No. 1 is § 2255 of Title 28, U.S.C.A., from which Rule 1 was modeled. Austin v. State, Fla.App.1964, 160 So.2d 730. As stated by the late Honorable John J. Parker concerning § 2255: 'This motion is in the nature of an application for a writ of error coram nobis and is merely declaratory of existing law (cases cited).' 8 F.R.D. 171, 175. The Reviser's Note to § 2255, supra, states:

'This section restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus. * * *'

Annotation references: 96 L.Ed. 244; 20 A.L.R.2d 976. Compare 24 C.J.S. Criminal Law § 1606; 18 Am.Jur.2d, Coram Nobis, Etc. As held by State v. Weeks, Fla.1964, 166 So.2d 892 (per Justice Thornal), motions for relief under Rule 1, like habeas corpus, are not steps in the criminal prosecution, but are in the nature of independent collateral, civil actions, based on criminal actions; and appeals from the final judgments under Rule 1 motions are governed by practice of appeals in civil actions; thus, the government, as well as the defendant, may appeal. Although Rule 1 motions are civil in nature, when filed in courts vested only with jurisdiction in criminal cases, such courts' jurisdiction of such motions becomes ancillary and subordinate to principal criminal cases; hence, it has ancillary civil jurisdiction in such instances. Furthermore, Rule 1.38 (now Rule 1.540) Rules of Civil Procedure abolished the use of 'writs' of coram nobis and audita querela but not the substance of the remedy under the classical 'writs' now available by motion. 7 Moore's Federal Practice, 2nd Ed., §§ 60.13 and 60.14. The effect of the rule is to substitute the motion for the writ. Blackstone made no mention of coram nobis due to the then use of the 'motion' to obtain its substances. Moore's Federal Practice, supra, § 60.14, citing Pickett's Heirs v. Legerwood, 1833, 7 Pet. 144, 147, 148, 8 L.Ed. 638. Rule 1, like § 2255, is not all comprehensive or exclusive of relief otherwise available by motion under the classical writs or under Rule 1.38 (now Rule 1.540) Rules of Civil Procedure. United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248. Like in habeas corpus and in certiorari, the 'writ' is no longer used, but the remedy remains available.

Since § 2255 and Rule 1 were both for the purpose of meeting the same kind of practical problems encountered in habeas corpus proceedings, and since Rule 1 is almost literally the same as § 2255, a reading of United States, v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232, is necessary for an understanding of the history, purpose and construction of both. Their principal objective is to provide a hearing where the records and witnesses and others with knowledge of the case were more likely to be.

Defendant's grounds for relief are that:

(1) The court lacked jurisdiction to accept his plea of guilty because he is 'an illiterate, moronic mental defected person that lack(s) ability of comprehension beyond that of an eight (8) year old child.'

(2) The defendant was deprived of effective assistance of counsel because his court-appointed counsel advised defendant that he thought defendant was guilty (before others) and advised defendant to plead guilty and 'refused to free movant's defense witnesses from intimidation by county solicitor's stratagem of charging defense witnesses with perjury--to subsequent(ly) drop such charges once purpose had been served.'

(3) The defendant was deprived of a fair and impartial jury because of 'the new(s) media's broadcastings and publications appearing prior to the trial of movant generated an atmosphere of hysteria and prejudice to movant, which was instigated by the police and prosecuting officials, inso much as (County Solicitor) Mr. James Russ release(d) statements to new(s) media that movant was a member of a so-called 'Nasty Bonzo Gang'. Judge Cooper's term of movant being a 'Mad Dog' so received wide coverage. Thoroughly prejudicing the mind of the prospective juror(s) * * * against him.'

(4) The defendant was deprived of a fair trial and his right to 'have compulsory process for obtaining witnesses in his favor' by 'charging movant's common-law wife, Mrs. Joyce Tolar, with perjury; threatening to send her to prison if movant refuse(d) to cooperate; (and) succeeding in suppressing Mrs. Tolar's testimony, frightening other witness(es), and coercing movant to co-operate--Mr. Russ dismissed charges of perjury following movant's convictions.'

(5) The defendant was deprived of a fair trial by the admission into evidence of perjured testimony which 'were the fruit of a bargain Solicitor Russ made with Morris Lee Davis and Gerald Brown, Co-defendants, and such was Perjurisus (sic) with knowledge of prosecutor and police officers; subsequently, Gerald Brown has admitted before this court that statements and testimonies give(n) by himself and Morris Lee Davis were mostly false, induced by Solicitor Russ' promises of freedom from prosecution.'

(6) The defendant 'was deprived an organic constitutional right by appointed-counsel Joseph K. Dumond and County Solicitor James Russ, whom through mental coercion and durass (sic) compelled the movant to enter a plea of guilty upon two-counts of robbery, in so much as, movants common-law wife testified that she and movant were at the movies on the night that 'Acme Cleaners' and 'Underhills 7--11' robberies took place. Whence, Mr. Russ charged her with prejury and advised movand that Mrs. Joyce William Tolar, his wife, would get 20-years for perjury; but if movant co-operated with the State, that charges against Mrs. Tolar would be dismissed. Whereupon Mr. Dumond advised movant that there was nothing else movant could do except submit. Therefore, movant being an illiterate, moronic eighteen year (18) old youth without sound mind, movant pleaded guilty to crimes which he knew nothing of, solely to save his wife from p...