Washington v. State

• Decision Date: 12 October 1926
• Citation: 110 So. 259,92 Fla. 740
• Parties: WASHINGTON v. STATE.
• Court: Florida Supreme Court

110 So. 259

92 Fla. 740

WASHINGTON v. STATE.

Florida Supreme Court

October 12, 1926

Petition by Abe Washington to have recalled a mandate affirming a conviction of first degree murder, and to have the case reinstated on the docket, and for permission on return of the mandate to apply to the judge of the trial court for a writ of error coram nobis.

Permission to apply for writ of error coram nobis granted.

Syllabus by the Court

SYLLABUS

Where conviction has been affirmed, trial court cannot entertain application for or grant writ of error coram nobis without permission duly given by appellate court. Where a judgment of conviction has been affirmed on writ of error, the trial court cannot entertain an application for or grant a writ of error coram nobis to such affirmed judgment without permission duly given by the appellate court that affirmed the judgment.

Supreme Court may on proper showing, after end of term at which conviction was affirmed grant leave to apply to trial court for writ of error coram nobis (Const. 1885, art. 5, § 5). While this court is without power to recall a mandate regularly issued and sent down to the lower court without inadvertence and resume jurisdiction of the cause after the expiration of the term at which its judgment was rendered and the mandate issued, except for the purpose of correcting mere clerical errors or mistakes or setting aside a judgment shown for some adequate reason to be absolutely void, it may upon a proper showing grant leave to one of the parties to make application to the trial court which rendered the judgment to grant a writ of error coram nobis to such judgment, provided the application contains allegations of fact of such a nature as would lawfully entitle him to the issuance of such writ and thereby authorize and permit the trial court to entertain such application and take appropriate action thereon.

Application for permission to proceed in lower court for writ of error coram nobis should make full disclosure of specific facts showing prima facie grounds for writ. Where application is so made to this court for permission to proceed in the lower court for a writ of error coram nobis to a judgment heretofore affirmed by this court, such application to this court should make a full disclosure of the specific facts relied on, and not merely the conclusions of the party as to the nature and effect of such facts, so that this court can construe the facts for itself and ascertain whether, under settled principles pertaining to such writ, the facts alleged would afford, at least prima facie, just ground for an application to the lower court for writ of error coram nobis.

Supersedeas or stay of execution of judgment sought to be attacked by writ of error coram nobis may be asked in petition for writ or by separate motion; whether supersedeas or stay of execution of judgment sought to be attacked by writ of error coram nobis shall be granted rests in sound discretion of court to whom petition for writ is made. Supersedeas or stay of execution of the judgment sought to be attacked by writ of error coram nobis may be prayed for by the petitioner in his petition for the writ, or by separate motion, and whether or not the same shall be granted rests in the sound discretion of the court to whom the petition for the writ is made.

COUNSEL

S.D. McGill, of Jacksonville, for petitioner.

OPINION

BROWN C.J.

This is a petition praying that the mandate of this court affirming the judgment of the court below and transmitted to the circuit court of Duval county on the 17th day of January 1924, and filed in said court on January 18, 1924, be recalled from the trial court and the cause reinstated on the docket of this court, and that petitioner be given permission upon return of the mandate of this court to make due and proper application to the judge of said circuit court in which the judgment of conviction was rendered, within a time and upon terms to be fixed by this court, praying for the granting of a writ of error coram nobis addressed to the said judgment of conviction of murder in the first degree in the case of the state of Florida against the petitioner.

Before going into the questions as to whether the alleged grounds upon which the petitioner proposes to pray the lower court to issue the writ of error coram nobis are sufficient in law to authorize this court to grant petitioner permission to make such application, we will first consider the question as to the power of this court to now act in the premises.

In Nickels' Case, 86 Fla. 208, 98 So. 502, 99 So. 121, the writ of error was taken to a final order made by the circuit judge denying a writ of error coram nobis, which order was affirmed by this court and motion for rehearing denied and mandate sent down. During the same term the court recalled such mandate in order that the cause might be reinstated on the docket of this court and that a rehearing might be granted upon the question raised. This action was taken under the general power vested in courts to control orders and judgments rendered during the term at which such control is exercised.

In the case of Lamb v. State (Fla.) 107 So. 535, the petition was presented to this court while it still had jurisdiction of the cause, the mandate of this court having not at that time been transmitted to the trial court, and this court gave permission to the petitioner to make due and proper application to the judge of the circuit court in which he had been tried and convicted for the granting of a writ of error coram nobis addressed to the judgment of conviction, such application to be made within 20 days, during which period of 20 days the execution of the mandate from this court, which was ordered transmitted to the trial court, was stayed. Later and during the same term an application was made to this court for mandamus to be directed to the judge of the lower court to act upon said petition for writ of error coram nobis. It appearing that proper application had not been made within the period of 20 days, this court held that mandamus would not issue to said judge to hear and act upon said petition after the expiration of the 20-day period, as the time allowed by this court had expired and the mandate of this court affirming the judgment of conviction had gone into full force and effect; that the judgment of the trial court had, therefore become the judgment of this court, and hence beyond the power of the circuit court to set aside. See Lamb v. Harrison, Circuit Judge (Fla.) 108 So. 671.

In the case first cited, Lamb v. State (Fla.) 107 So. 535, this court said:

'An application for writ of error coram nobis must be made within the time allowed by statute for taking any writ of error; but where [as in this state] there is no such limitation in writs of error in criminal cases, there is none as to writs of error coram nobis [citing authorities]. * * *

'Where a judgment of conviction of a crime has been affirmed on writ of error, the trial court cannot then grant a writ of error coram nobis, for the affirmed judgment is also the judgment of the appellate court, and the lower court is without power to review the affirmed judgment or to impair its validity or effect [citing authorities]. * * * But if leave to issue the writ should be granted by the appellate court that affirmed the judgment, the trial court may grant a writ of error coram nobis upon a sufficient showing duly made.

'After the affirmance of a judgment of conviction taken to the Supreme Court by a writ of error, the trial court is without authority to consider an application for a writ of error coram nobis, unless permission is duly given by the appellate court that affirmed the judgment. * * * If the writ is granted, a trial is had in due course of law on the issue made as to the existence of the particular facts; and if found for the plaintiff in the writ, the court determines whether such facts are sufficient to cause the judgment of conviction to be vacated; but the judgment of conviction is not set aside or affected unless and until a valid judgment for the plaintiff in the writ of error coram nobis is rendered in due course of legal procedure. If the writ is denied, the petitioner may take a writ of error in due course. Should a final judgment against the defendant be rendered at the trial on the writ of error coram nobis, he may take a writ of error to the appellate court to review the judgment. As the law now stands, if the trial court erroneously grants a writ of coram nobis the state has no right to an appellate review of such order.'

Even if this court has the power to grant permission to the petitioner to make application to the trial court for a writ of error coram nobis, under the facts of this case, it could not recall the mandate sent down from this court to the trial court in January, 1924, and reinstate the cause on the docket of this court, long after the term of this court at which the mandate to the lower court was transmitted, has expired. As was said by this court in Trustees' Internal Improvement Fund v. Bailey, 10 Fla. 238, on pages 257, 258:

'Let us return to the motion to docket the cause. To docket the cause would imply there was such a cause in court, and to entertain a rehearing would be a farce, unless the judgment entered on the 19th of April, 1962 (about one year and eight months ago), was vacated or recalled.

'In cases where application is made under the rule of court, the judgment of the court in not enrolled until the application is disposed of. In this case, the application was denied and judgment enrolled. The term of court in which said judgment was entered has long since passed, and the question arises can ...