Opinion
December 19, 1950. Rehearing Denied January 24, 1951.
Appeal from the Criminal Court of Record for Hillsborough County, L.A. Grayson, J.
D. Newcomb Barco, Jr., Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Phillip Goldman, Asst. Atty. Gen., for appellee.
On February 17, 1940, the appellant-defendant, John Moutos, alias Montos, Joe Kromer and Luther Cook were informed against for the crime of armed robbery alleged to have been committed in Hillsborough County, Florida, on February 10, 1940. The defendants were arraigned on the information on February 19, 1940, when Joe Kromer and E. Fred Cook plead guilty to the information. John Moutos, alias Montos, entered a plea of not guilty and his date of trial as set by the trial court was March 4, 1940. On March 4, 1940, John Moutos, alias Montos, accompanied by his counsel, C.M. Bourland, requested the trial court for permission to withdraw the plea of not guilty previously tendered and in lieu thereof to file a plea of guilty to the information then pending against him. The trial court then granted the appellant-defendant's request but the imposition of sentence by the trial court was deferred.
On March 15, 1940, the trial court adjudged John Moutos, alias Montos, guilty as charged in the information, and on said date entered an order deferring the passing of sentence from day to day and term to term. An amended motion for leave to withdraw the plea of guilty previously entered and to grant the appellant a full hearing was presented to the trial court by the County Solicitor and counsel for appellant, which motion was denied by the trial court under date of March 17, 1950. On the same date, supra, the trial court sentenced the appellant-defendant in said cause to serve a period of twenty-five years in the State Prison at hard labor. From this judgment John Moutos, alias Montos, appealed.
It is contended here that the court erred, first, in refusing to permit the appellant-defendant to withdraw his plea of guilty and submit in lieu thereof a plea of not guilty; second, the trial court erred in denying defendant the right to introduce evidence to show that he entered a plea of guilty to the information charging armed robbery through misapprehension, misadvice, ignorance and the hope of securing a lighter sentence; third, the testimony of the alleged victim, to-wit, Joe Hyman as considered by the trial court, as appears on page 109 of the transcript, was clearly reversible error. The fourth contention is that the judgment of twenty-five years constitutes excessive punishment and is erroneous.
The sworn motion of the appellant-defendant filed in the court below praying for permission to withdraw the plea of guilty previously entered and to submit testimony on the merits of the case was supported by affidavits. On page 109 of the transcript it appears that Joe Hyman identified the appellant as the young man who held the gun on him. The appellant had been recently arrested near the City of Tampa at a place known as "Sky Haven". He was armed at the time with a sawed-off shotgun and was going under an assumed name. Tr. p. 9. It appears at page 95 of the transcript that the appellant is at the present time informed against in Hillsborough County for conspiring with others to kill the Sheriff of Hillsborough County. The power of the court to impose the sentence challenged on this appeal is clearly established. See Pinkney v. State, 160 Fla. 884, 37 So.2d 157; Bronson v. State, 148 Fla. 188, 3 So.2d 873; Campbell v. State, 131 Fla. 135, 179 So. 137, and similar cases. Also Section 909.13, F.S.A.
The petition and supporting affidavits seeking an order permitting a withdrawal of the plea of guilty were presented to the court below approximately ten years after the plea of guilty was filed and the entry of an order deferring the imposition of sentence. It is pointed out that the petitioner was then about twenty years of age, had a seventh grade education and was the son of Greek emigrants. The sworn petition goes to the point that the plea of guilty was filed in contemplation of receiving or obtaining a light sentence but the sentence of twenty-five years later imposed thereon is contrary to the implied understanding of the parties at the time the plea was filed.
The trial court, at the time of imposing the twenty-five year sentence on appellant, had before him the factual situation viz.: Two informations were pending against appellant in 1940 — one charged unarmed robbery and a jury, after hearing the evidence, failed to agree upon a verdict. The appellant withdrew his plea of not guilty and in lieu filed a plea of guilty to the information and the trial court imposed a sentence of five years in the State Prison, the second information charged armed robbery and to this information the appellant entered a plea of guilty which he now desires to withdraw, largely on the theory that he believed he would get a light sentence if he plead guilty, and now wants to go to trial on the merits. Joe Hyman, the appellant's victim, was in the court below and identified the appellant as the individual who held the gun on him in 1940. The appellant served his five year sentence and returned to Tampa. He was arrested by the officials of Hillsborough County, and at the time was armed with a sawed-off shotgun — was going under an assumed name, and was informed against in the Criminal Court of Record for conspiring to kill or murder the Sheriff of Hillsborough County, Florida.
We find in the record very little to sustain the appellant's contention that he filed the plea of guilty in order to obtain a light sentence on the armed robbery charge. The order of the trial court failed to recognize this implied agreement, and contrary thereto recites: "and the court now defers the passing of sentence from day to day and term to term in the above styled cause on the defendant John Moutos, alias Montos." The petitioner comes into court with poor grace after ten years and a possible scattering of the State's witnesses and requests the right to go to trial on the merits. The petition was never presented in the court below until after he ran afoul of the law and was taken into custody and charged later with the conspiracy to murder. The petitioner's criminal record and the protection of the community from further possible criminal acts could have been factors in the mind of the lower court when the petition was denied.
It is next contended that the sentence of twenty-five years imposed below on the appellant is excessive. The answer to this contention is found in Section 813.01, F.S.A. A person convicted of armed robbery may by the trial court be sentenced to the State Prison for a term of years, or, in the discretion of the court, for and during the term of his natural life. The several questions briefed and argued on this appeal have been carefully considered and reversible error has not been made to appear.
Affirmed.
ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.