Urga v. State

• Decision Date: 23 July 1946
• Parties: URGA v. STATE.
• Court: Florida Supreme Court

26 So.2d 786

157 Fla. 794

URGA v. STATE.

Florida Supreme Court

July 23, 1946

Appeal from Criminal Court of Record, Hillsborough County; L. A. Grayson, Judge.

Pat C Whitaker, of Tampa, and J. Lewis Hall, of Tallahassee, for appellant.

J. Tom Watson, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., and Luther W. Cobbey, of Tampa, for appellee.

SEBRING, Justice.

Diamante Urga was convicted of using certain instruments and other means wilfully and feloniously in and upon a female person with the intent to procure a miscarriage, in violation of Section 797.01, Florida Statutes 1941, F.S.A. On appeal the judgment was affirmed. See Urga v. State, 155 Fla. 86, 20 So.2d 685. Thereafter Diamante Urga applied to this court for leave to file an application for a writ of error coram nobis in the court below on the ground of newly discovered evidence which would preclude the entry of the judgment. Permission to apply to the trial court for the writ of error coram nobis was finally granted by this court after full consideration of the sufficiency of the petition to state a ground for relief. The defendant then presented to the trial court her petition for writ of error coram nobis, which contained the identical language and had attached thereto the identical affidavits in support thereof, as was held sufficient by this court on the application of the writ. Objections were filed by the state to the issuance of the writ. Upon the hearing on the objections the trial court entered an order that 'it appearing from the order of the Supreme Court as well as the decisions in other cases that this court has the duty, power and authority to pass upon and determine the sufficiency of the petition filed by the defendant, it is thereupon ordered that said motion of the defendant for said writ be, and the same is hereby denied. It is the order of the court that said petition is insufficient as a basis for writ of error coram nobis and it is for this reason the court denies said motion of the defendant and does hereby dismiss said petition.'

An appeal has been taken by the defendant from this order. The question for decision is presented in briefs of counsel, as follows: Where the Supreme Court of Florida affirms a judgment of conviction and subsequently there is presented to the Supreme Court a proposed petition for writ of error coram nobis to the lower court with application for leave to file the same and the Supreme Court after full argument on the sufficiency of the proposed petition grants leave for it to be filed in the lower court, does the granting of such leave to file establish the sufficiency of the petition for writ of error coram nobis?

We are of the view that this question must be answered in the affirmative. In Chambers v. State, 117 Fla. 642, 158 So. 153, 155 it is held: 'It is * * * proper and entirely consistent with principle that this court after affirming a judgment of conviction should require a convicted person desiring a writ of error coram nobis to submit his petition to this court wherein he shall set forth the facts which were not brought to the attention of the trial court and which he asserts would have precluded the entry of the particular judgment had they been known or had been brought to the court's attention. In such case this court then determines the legal effect of such alleged facts as affecting the judgment, and if it deems them sufficient in legal effect if established it grants permission to the applicant to apply to the trial court for a writ of error coram nobis. * * *'

'When the Supreme Court has made its order upon a petition duly presented allowing the petitioner to apply to the trial court for a writ of error coram nobis, it is...