Opinion
August 21, 1951.
Appeal from the Criminal Court of Record, Polk County, R.H. Amidon, J.
D.C. Laird, Lakeland, for appellant.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.
An information filed by the County Solicitor of Polk County charged the appellant with possessing lottery tickets and devices for conducting a lottery, and actually operating a lottery, known as "Cuba." Upon his arraignment, August 22, 1950, he plead guilty, but the passing of sentence was deferred until September 5 when the solicitor asked that the appellant be placed on probation and the defendant, in turn, announced that he wished to file a plea in abatement. The judge postponed the matter for a week to enable the appellant to consult counsel.
The plea was filed setting out that the appellant had been summoned before the grand jury and had testified to "material facts which were involved in this case"; that the testimony was given before the information was filed and therefore the pleader was immunized under Sec. 932.29, Florida Statutes 1949, and F.S.A.
On the same day the appellant moved to withdraw his plea of guilty because (1) he was held incommunicado for four days, from the time of his arrest until he plead, (2) he was advised by his keeper that he would be granted immunity, and (3) he understood his plea was "sham," not a genuine plea of guilty.
The state traversed the plea and alleged, affirmatively, that the appellant did not appear before the grand jury until two days after the information was filed and the plea was offered.
This was followed by an amendment to the motion to withdraw the plea, incorporating the additional grounds that the plea was (4) induced by hope of reward, (5) "entered under mistake and misapprehension of the true circumstances," (6) offered when the defendant had already been given immunity by testifying under oath before the county solicitor, the state attorney and an investigator for the governor; (7) based on evidence obtained by violation of defendant's constitutional rights because "said evidence was obtained on an improper and invalid affidavit and search warrant for the Defendant's residence"; and (8) founded on the promise of the investigator to the defendant, and his wife, that upon so pleading "everything would be all right."
The next step in appellant's behalf was a motion to quash, setting out in large measure the circumstances already detailed and containing the further ground that the information was defective because in it the defendant was charged with three distinct offenses for each of which there was a different punishment.
The state traversed also the amended motion to withdraw and moved to strike paragraph 7. This motion was granted and the court then proceeded to hear testimony on the amended motion to withdraw.
Recapitulating, grounds 1 to 5, inclusive, and 8, related to the manner in which the plea was obtained, ground 7 was eliminated and ground 6 dealt with the manner of immunity of which we will presently treat.
The defendant was the sole witness in the hearing on the motion to withdraw and the traverse, and we will now undertake to give his story of what happened beginning with the time he left his home accompanied by the state attorney and the governor's investigator the morning of August 19, 1950. These three men traveled to Lake Wales, Clermont, Suwannee River Springs, and the "edge" of Tallahassee, then returned via Winter Haven to Lake Wales where they spent the night. The following morning the appellant talked with his two companions and the county solicitor in the state attorney's office about lottery activities in the county. The information he gave was reduced to writing and later attested by him. The investigator and the appellant then set out for Clearwater, thence drove to Tallahassee.
After the two reached Lake Wales from Tallahassee the following night, the plea of guilty was mentioned for the first time when the appellant's wife, who had visited him at the hotel earlier in the evening, telephoned from their home that he was "going to plead guilty the next morning." It isn't clear how she got the idea or what prompted her to call her husband and make such a positive statement to him. Later in the night the appellant asked the investigator "`What about this pleading guilty business'" and the latter, according to the appellant, replied "`Everything is all right. You don't have to worry about that. The worst you can get is probation. That would be the worst you can get.'" Also while they were together the investigator had told the defendant that he "would be taken care of."
The appellant testified point blank that the only reason for his pleading guilty was the promise he would be placed on probation and that the only representations made by the state attorney, having any resemblance to promises, were the statements that appellant would be "one of the last ones to be tried" and that "`We are not particularly after you or any of the other operators'" or, as the appellant stated it otherwise, "they [were not] after me any more than * * * any of the other operators." From this testimony it further appears that the appellant was never placed in jail and made no request for counsel. He told the state attorney he would be satisfied with probation and thought it would be good for him. The state attorney and the county solicitor both recommended to the court that he be placed on probation.
The appellant was under no pressure, he said, when he gave these officials information relative to lottery operations and he left his home in the first instance with the investigator and the state attorney at his own request.
The trial judge was eminently correct when he concluded from the testimony of the appellant himself that there was no support of the grounds relative to any advantage having been taken of the appellant when he entered the plea of guilty. As the judge held, his plea was obviously free and voluntary, he was in custody at his own request, he was offered no reward save what was acceptable to him, that is, probation. These are all the reasons given by the judge for denying the motion to withdraw, save one, which we will presently discuss.
The upshot of these findings was the denial of the motions to withdraw and to quash. Certainly, upon denial of the motion to withdraw the plea, the motion to quash became nugatory. The court then placed the appellant on probation, a procedure, we cannot resist reiterating, the defendant himself welcomed.
The remaining reason for denial of the motion to withdraw was the judge's conviction that the defendant "has not been required to testify" as contemplated by Sec. 932.29, supra, and "was therefore not entitled to immunity under the provisions of said section." (Italics supplied.)
This brings us to the determining question, standing out in relief against the background just recounted, that is, the propriety of the adjudication of guilt and probation in the light of the appellant's right under Sec. 932.29, supra. Condensed to fit the present situation this statute provides that "No person shall be excused from * * * testifying * * * before any court upon any investigation, proceeding or trial, for a violation of any of the statutes of this state against * * * gaming or gambling * * * upon the ground or for the reason that the testimony * * * required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify * * *."
By pleading to the information the defendant waived immunity under the statute. Poppell v. State, 148 Fla. 275, 4 So.2d 331; Sec. 909.06, Florida Statutes 1949, and F.S.A. True, he attempted to withdraw his plea, but we have already said that he showed no valid reason for being allowed that privilege.
But there is no need to pursue that proposition further because of the very manner in which the appellant made the disclosures to the prosecuting officers. He evidently was not compelled, or "required," to say anything raising any point of his being excused or, being granted by the state through the statute, immunity of himself from prosecution in return for divulging information to prosecute others. Had he declined to reveal what he knew about bolita operations in the county on the ground that he would be implicated or, to use the words of the statute, "the testimony [might] tend to convict him of a crime or to subject him to a penalty," he would not have been excused but he could not have been prosecuted.
Such a guarantee has been called by this court a contract between the state and the criminal based on public policy and amounting to an exchange of an exemption for a disclosure of crime. Ingram v. Prescott, 111 Fla. 320, 149 So. 369. The value to the state of such an arrangement is great, for without it, too often would it be impossible to fracture a criminal combine. But if there has been no effort to force damning information, hence no claim of the personal advantage, no occasion arises for a concession by the state. One cannot volunteer testimony inculpating himself and then claim the reward that is calculated to overcome his reluctance or resistance.
The judgment is affirmed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.