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Peel v. State

Florida Court of Appeals, Second District

February 1, 1963

Joseph A. PEEL, Jr., Appellant,
v.
STATE of Florida, Appellee.

Rehearing Denied March 5, 1963.

Page 282

Harry W. Fogle, of Fogle, Wilson & Shingler, St. Petersburg, for appellant.

Richard W. Ervin, Atty. Gen. Tallahassee, Robert R. Crittenden, Asst. Atty. Gen. Lakeland, Phil D. O'Connell, State Atty., West Palm Beach, Eugene P. Spellman, Miami, for appellee.

ALLEN, Acting Chief Judge.

Joseph A. Peel, Jr., appeals from a sentence to life imprisonment given him after a nolo contendere plea under an indictment returned by the Palm Beach County Grand Jury which accused him of being an accessory before the fact to first degree murder.

The indictment filed November 23, 1960, charged that Floyd A. Holzapfel effected the death of one Marjorie M. Chillingworth by drowning her on June 15, 1955, and that, at divers times between May 1, 1955, and June 15, 1955, the defendant, Joseph A. Peel, Jr., unlawfully counseled, hired, procured and commanded the said Floyd A. Holzapfel to do and commit the aforesaid felony.

On the same date another indictment was filed charging Holzapfel with the crime of murder in the first degree in the killing of Judge C. E. Chillingworth, and charging the defendant Peel with being an accessory before the fact to the commission of that murder.

The Circuit Court of the 15th Judicial Circuit transferred the venue of the cause to the Circuit Court of the 9th Judicial Circuit in and for St. Lucie County, where defendant Peel was tried as being an accessory to the murder of Judge Chillingworth, worth, who was the husband of Marjorie M. Chillingworth. Peel was convicted by the jury with a recommendation of mercy and given a mandatory life sentence by the trial judge. Subsequently, after an unsuccessful attempt to secure an impartial jury for the instant case in St. Lucie County, an order was entered transferring this cause to the Circuit Court of the 10th Judicial Circuit in and for Polk County, Florida.

On November 29, 1961, after two days of hearing which were chiefly taken up in the selection of a jury, at a conference with the Honorable D. C. Smith, Judge of the 9th Judicial Circuit, who was the trial judge in the previous Peel case for the murder of Judge Chillingworth, and who had been assigned to the 10th Circuit for the instant case, the appellant voluntarily withdrew his plea of not guilty and entered a plea of nolo contendere to the indictment. The prosecuting attorney thereupon offered into evidence with the acquiescence of appellant's counsel the transcript of testimony constituting the prosecution's evidence against the appellant taken in the trial of Peel in the Judge Chillingworth case. The trial court accepted the appellant's plea of nolo contendere and adjudged him guilty of the crime charged in the indictment, sentencing him to life imprisonment in the Florida State Prison.

Upon the appellant's motion for new trial being denied on December 4, 1961, he filed on February 22, 1962, his notice of appeal herein.

The appellant states in his brief, and argues, the following questions:

'1. Is a defendant charged with being an accessory before the fact to first degree murder entitled to a bill of particulars as to the crime which is alleged to have occurred five and one-half years before the finding of the indictment?

'2. Was it error for the court to deny the defendant's motion for a mistrial made in this cause based upon the defendant's being taken before the panel of prospective jurors under shackles and bonds, to-wit, handcuffs?

'3. Was it error for the court to deny the defendant's motion for a continuance in order to enable to defendant to obtain the testimony of Peggy Holzapfel and Charles Rothschild and to deny the issuance of a commission for

Page 283

the taking of the testimony of the said witnesses by interrogatories?

'4. Was it error for the court to deny the defendant's motion to dismiss this prosecution based upon the ground that a speedy and public trial had been denied to him?

'5. Was it error for the court to deny the defendant's motion to dismiss this prosecution based upon the ground that the defendant was twice being placed in jeopardy for the same offense?

'6. Can the court accept a plea of nolo contendere to a capital offense?

'7. Can the court accept a plea of nolo contendere to a capital offense upon the express condition that a life sentence be imposed upon the defendant?'

The State adduces the following additional point:

'Whether an accused, after voluntarily entering a plea of nolo contendere to a criminal charge, being adjudicated guilty and sentenced thereon, may raise questions on appeal concerning matters other than the sufficiency of the accusatory writ.'

We shall affirm the lower court in this case.

Because of the effect that a nolo contendere plea has on the other points stated by the appellant, we must discuss its acceptability by the courts in the first instance. We shall then proceed to discuss in turn appellee's additional point and then appellant's sixth and seventh points before alluding to appellant's other five points, the determination of which depends on our conclusions regarding the matters first considered.

The questions involving the plea of nolo contendere are ones of first impression in Florida. Counsel have cited no Florida cases nor have we found by independent research any that answer the points directly. However, three decisions by our Supreme Court involved cases in which nolo contendere pleas had been filed but in which the court did not discuss the questions raised in the instant case.

Before we survey the decisions of other jurisdictions for the historical development of the plea of nolo contendere, we will discuss the three Florida cases in which the plea was used.

In Pensacola Lodge No. 497, B. P. O. E. v. State, 74 Fla. 498, 77 So. 613, it was stated:

'Where a plea of nolo contendere is accepted it is not necessary in passing sentence for the court to adjudge the party to be guilty, for that follows as a legal inference from the implied confession in the plea; but the court should adjudge that the defendant is convicted of the offense charged, and the sentence which follows should impose the penalty as provided by law. * * *'

In Fox v. State, 112 Fla. 104, 150 So. 228, the defendant filed a plea of nolo contendere which he subsequently moved to withdraw. The motion to withdraw was denied, and an appeal was taken by the defendant. The Supreme Court, in its opinion, said:

'To an information charging a felony, the accused, apparently without understanding its import, offered a plea of nolo contendere, upon which a judgment of conviction and sentence to the state prison was rendered. It does not appear that the accused was represented by counsel when the plea was filed. A motion to vacate the judgment and for leave to withdraw the plea of nolo contendere was supported by an affidavit of the accused that he had 'never heard before of the word nolo contendere and did not know or understand its meaning, but was under the impression and believed that when he entered a plea that he was entering a

Page 284

plea of not guilty and that he did not intend to plead guilty,' but is innocent. The motion was denied. This was harmful error.'

In the case of State v. Febre, 156 Fla. 149, 23 So.2d 270, the defendant Febre was charged with assault with intent to commit murder in the first degree and was convicted by the criminal court of record of aggravated assault. Both the State and the defendant appealed to the Supreme Court. A motion was made by the defendant to dismiss the appeal of the State which was granted. The Supreme Court, in its opinion, said:

'An information charging assault with intent to commit murder in the first degree was filed against Edmundo Febre by the County Solicitor of Hillsborough County, Florida, and upon arraignment thereto in the Criminal Court of Record he entered a plea of nolo contendere. The Honorable L. A. Grayson, Judge, thereupon heard testimony and entered a judgment of conviction of the crime of aggravated assault and sentenced Febre to serve one year at hard labor in the County Jail of Hillsborough County, Florida.

* * *

* * *

'Counsel for Edmundo Febre moved this court to dismiss the appeal taken by the State of Florida in the case at bar and several reasons are submitted therefor. While other grounds of the motion to dismiss may have merit, we deem it necessary only to consider ground No. 2, which is, viz.:

"The transcript of record filed in this Court shows on its face that appellee was adjudged guilty by the trial court of a misdemeanor, to-wit, aggravated assault, and was given a legal sentence therefor within the statute, to-wit, twelve months imprisonment in the County jail of Hillsborough County, Florida; that therefore the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, has final appellate jurisdiction of said conviction and the same cannot be reviewed on direct appeal to this Court. See Art. V, Sec. 5, Constitution of Florida; Sec. 287, Criminal Procedure Act, [F.S.A. ยง 924.08]; Byrd v. State, 146 Fla. 686, 1 So.2d 624.'

'The crime of assault with intent to commit murder in the first degree, as charged in the information, embraced lesser criminal offenses. The trial court accepted the plea of nolo contendere and then proceeded to hear testimony and to ascertain therefrom the degree of guilt for which the appellee should stand convicted. It was the conclusion of the trial court, after hearing all the evidence offered by the respective parties and argument of counsel, that the appellee was guilty of the crime of aggravated assault and so held, and entered judgment against the appellee accordingly. The effect of this adjudication was to acquit the appellee of all greater offenses charged in the information. See State ex rel. Landis v. Lewis, 118 Fla. 910, 160 So. 485; Haddock v. State, 141 Fla. 132, 192 So. 802.

'Considerable space in the brief of appellant (the State of Florida) is devoted to the question of whether the appellee (Edmundo Febre), under the plea of nolo contendere, by the trial court should have been adjudged guilty of an assault with intent to commit murder in the first degree, or an assault with intent to commit murder in the second degree. Sections 784.06, 909.10, 909.11, 919.14, 919.16, Fla.Stats.1941, F.S.A.; Pensacola Lodge No. 497, B.P.O.E. v. State, 74 Fla. 498, 77 So.2d 613, and citations from other jurisdictions, are cited and relied upon to sustain the contention. These authorities have been carefully examined.'

The Court concluded that since the trial judge had received evidence and reached a determination that the defendant was

Page 285

guilty of aggravated assault, a misdemeanor, the State of Florida was bound by such findings of fact the same as if they had been arrived at by jury verdict. Jurisdiction over appeals in misdemeanor cases being in the circuit court, the appeal was dismissed.

It would appear that if a plea of nolo contendere had not been proper in the foregoing Florida cases, our Supreme Court would have commented on its impropriety as to the particular case. Nor can we ignore the implied recognition given said plea by the Florida Legislature.

Section 909.02, Florida Statutes, F.S.A., provides:

'909.02 Certain pleas abolished; motion to quash substituted. Pleas to an indictment or information, other than pleas of nolo contendere, guilty, or not guilty, are abolished.

'All defenses heretofore available to a defendant by plea, other than pleas of nolo contendered and not guilty, shall be taken only by motion to quash the indictment or information, whether the same relate to matters of form or substance, former acquittal, former jeopardy, or any other defense which heretofore was raised by plea.'

In 152 A.L.R. 253, there appears an excellent annotation upon the plea of nolo contendere or non vult contendere. The anotator, in the introduction on page 254, states:

'a. History of plea.

'Recent years have brought about the renaissance of a plea in criminal proceedings which, already half forgotten, was on its way to complete oblivion. This has been particularly evident in the Federal courts, where, according to some authors, thousands of defendants have pleaded nolo contendere in the past few years to indictments and criminal informations charging them with violating the anti-trust laws. This phenomenon has served to focus attention upon this plea, and it may be expected that because of the attractiveness of certain of its features for the defendant it will grow in frequency and importance, once attorneys have discovered a willingness on the part of the courts to accept a plea under proper circumstances.

* * *

* * *

'It is an interesting phenomenon that all discussions of the nature of the plea of nolo contendere go back in their last analysis to one and the same source, namely a passage in the book of an English author published early in the nineteenth century. [Hawkins, A treatise of the Pleas of the Crown, 8th ed, c. 31, p. 466]. This famous passage reads: 'An implied confession is where a defendant, in a case not capital, doth not directly own himself guilty, but in a manner admits it by yielding to the king's mercy, and desiring to submit to a small fine: in which case, if the court think fit to accept of such submission, and make an entry that the defendant posuit se in gratiam regis, without putting him to a direct confession, or plea (which in such cases seems to be left to discretion), the defendant shall not be estopped to plead not guilty to an action for the same fact, as he shall be where the entry is good cognovit indictamentum.'

* * *

* * *

'It has been held in a majority of cases that a court is not, by accepting a plea of nolo contendere prevented from sentencing the accused to imprisonment. This is the generally accepted rule in the Federal courts. It has been definitely settled by the decision in Hudson v. United States, [(1926) 272 US 451, 71 L ed 347, 47 S.Ct. 127)] which, being the leading case on this point, expressly repudiated the contrary doctrine as expressed in Tucker v. United States, [(1912; CCA 7th) 196 F 260, 41 LRA (N.S.) 70]. In the Hudson Case, the

Page 286

defendants were indicted for using the mails to defraud, a felony punishable by fine or imprisonment or both, and after pleading nolo contendere, each defendant was sentenced to imprisonment. Holding that a Federal court could, after accepting a plea of nolo contendere, impose a prison sentence, the Supreme Court rejected the contention that the statement in Hawkins of 'desiring to submit to a small fine' expressed a condition binding on the tribunal and preventing it from imposing a prison sentence, and, declaring that this statement was illustrative only, said: 'We think it clear, therefore, that the contention now pressed upon us not only fails of support in judicial decisions, other than those of the seventh circuit already noticed, but its historical background is too meager and inconclusive to be persuasive in leading us to adopt the limitation as one recognized by the common law. Undoubtedly a court may, in its discretion, mitigate the punishment on a plea of nolo contendere, and feel constrained to do so whenever the plea is accepted with the understanding that only a fine is to be imposed. But such a restriction made mandatory upon the court by positive rule of law would only hamper its discretion and curtail the utility of the plea.'

'Prior to the decision in the Hudson Case, a number of lower Federal courts had held that a sentence of imprisonment could be imposed upon a plea of nolo contendere, and since this decision this rule has been consistently followed in the Federal courts.

'In the state courts the precise question has rarely been raised expressly; but where this has been the case the better considered cases have followed the federal rule. In a majority of jurisdictions the courts have ordered imprisonment on pleas of nolo contendere without discussing the problem.' [Fox v. State, 1933, 112 Fla. 104, 150 So. 228, and cases from New Hampshire, New Jersey, North Carolina, Pennsylvania, Rhode Island and Texas.]

The annotator, in 152 A.L.R. 273, states the effect of the plea on the case in which it is made as follows:

'What is the legal effect of the plea of nolo contendere after it has been offered by the defendant and accepted by the court in respect to the case in which it has been interposed? The answer to this question as given by all the decisions in point is: The plea of nolo contendere when accepted by the court, becomes an implied ...


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