Opinion
No. 66-918.
August 8, 1967. On Rehearing September 27, 1967.
Appeal from the Circuit Court for Dade County, Grady L. Crawford, J.
Robert L. Koeppel, Public Defender, and Marvin J. Emory, Jr., Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., for appellee.
Before CHARLES CARROLL, C.J., BARKDULL, J., and LOPEZ, AQUILINO, Jr., Associate Judge.
Appellant seeks review of an order summarily denying his third petition, filed pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
The appellant first pleaded not guilty and then changes his plea to guilty, and was adjudged guilty of the crime of rape and sentenced to life imprisonment in the State penitentiary. Subsequent thereto, he has filed three petitions to vacate under Criminal Procedure Rule No. 1. He filed the instant petition [the third] alleging, in part, a new ground that he was coerced into pleading guilty by his court-appointed counsel in concert with the judge.
Although we may doubt whether the appellant can establish these charges, under the decision of Jones v. State, Fla. App. 1964, 165 So.2d 191, we are compelled to reverse this order summarily denying relief, because the record fails to refute the allegations made by the petition.
Therefore, the order under review is hereby reversed and the cause is remanded to the trial court for the purpose of receiving pleadings and/or affidavits, exhibits, etc., from the State in response to the appellant's petition and evidence on the issues as made. See: King v. State, Fla. App. 1963, 157 So.2d 440.
Reversed and remanded with directions.
ON REHEARING GRANTED
The record on appeal has been supplemented by the proceedings which took place before the trial judge on the change of plea from not guilty to guilty. The court having considered same in reference to the appellant's contention that his guilty plea was coerced, we grant the petition for rehearing and, upon reconsideration of the order appealed, we affirm the trial court's action denying the appellant's third petition for relief pursuant to petition under Criminal Rule No. 1, and recede from our prior opinion dated August 8, 1967.