Opinion
No. U-370.
July 20, 1976.
Appeal from the Circuit Court, Union County, John A.H. Murphree, J.
Joe Reddish, in pro per.
Robert L. Shevin, Atty. Gen., and Donald K Rudser, Asst. Atty. Gen., for appellee.
Although appellant raises several points on appeal, only one, relating to the voluntariness of his guilty plea, merits discussion. Appellant was initially tried and convicted of first degree murder and received the death penalty. His conviction was reversed and remanded for a new trial by the Florida Supreme Court. Reddish v. State, Sup.Ct.Fla. 1964, 167 So.2d 858. On November 23, 1964, appellant appeared before the trial court with his privately retained counsel and entered guilty pleas to two separate counts of first degree murder and to the charge of shooting into a dwelling. The next day appellant again appeared before the trial court with his counsel and received two life sentences on the murder charges and a 10 year sentence for shooting into a dwelling, all sentences to be served consecutively. The trial court directed certain questions to appellant on November 23 and 24, which were responded to by appellant's private counsel, appellant himself making no response. Some nine years after entering his pleas, appellant filed a Rule 3.850 motion to vacate and set aside the judgment and sentence which the trial court denied. It is from the denial of that motion that appellant now appeals.
We are of the view that this case is controlled by Rodeheaver v. Wainwright, Fla. App. 1st 1971, 245 So.2d 633, and must be
AFFIRMED.
McCORD, J., concurs.
RAWLS, J., specially concurs.
At first blush it appears that this court's opinion in Williams v. State, 245 So.2d 267 (Fla.App. 1st 1971), requires remand for an evidentiary hearing where the record, such as in the instant case, does not disclose inquiry by the trial judge as to the voluntariness of a defendant's plea of guilty. Williams is not applicable. The pleas of guilty here considered were entered by defendant's privately retained counsel on November 23, 1964, some five years prior to the U.S. Supreme Court's decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and at said time Florida had not adopted a "voluntariness" rule. We clearly stated in Williams that:
The predecessor of Florida Rule of Criminal Procedure 3.170(j) was 1.170(a) which was adopted by the Florida Supreme Court in 1967. This rule was patterned after Federal Rule of Criminal Procedure 11.
"In our opinion it would ordinarily be presumed that a member of The Florida Bar always adequately informs his client concerning the nature of the charge pending against him and the consequences of a plea of guilty before allowing such a plea to be entered. We cannot invoke this presumption in the instant case because the Rules of Criminal Procedure provide explicitly that the trial judge shall not accept a plea of guilty without first determining that it is made voluntarily with an understanding of the nature of the charge. Solely because of this rule, after considering prior United States Supreme Court decisions which served as a catalyst for adoption of the rule, we are compelled to remand this cause to the trial court for an evidentiary hearing upon the question of whether or not the trial judge made such inquiry as contemplated by said rule."
The predicate for Williams being absent, we presume that appellant's trial counsel, a distinguished member of The Florida Bar "adequately inform[ed] his client concerning the nature of the charge pending against him and the consequences of a plea of guilty before allowing such a plea to be entered." Such presumption is especially true in considering the history of this case, wherein appellant had once entered pleas of not guilty for the identical crimes, was tried and convicted, sentenced to death, and reversed and remanded for a new trial.