Opinion
No. 71-412.
December 16, 1971.
Dennis Robinson, in pro. per.
Robert L. Shevin, Atty. Gen., Tallahassee, and P.A. Pacyna, Asst. Atty. Gen., Tampa, for respondent.
In this case petitioner Dennis Robinson on February 5, 1971 filed his petition originally in the Supreme Court for a writ of habeas corpus, alleging his illegal incarceration by respondent Wainwright as the legal custodian of State Prisoners. On March 24, 1971, the Supreme Court issued opinion and order, 245 So.2d 867, reciting that "the transcript of the proceedings revealed without contradiction that at no time was petitioner informed by the trial court that he had a right to appeal the judgment and sentence entered against him", that "under the facts before us, it would appear that petitioner has made out a prima facie case for relief . . .", and the cause was thereupon transferred to this Court to permit us to make inquiry into the matters set forth in the petition for the writ "and grant such relief as it may deem appropriate, including the appointment of a commissioner to make further findings of fact".
Therefore, in accordance with the order and opinion of the Supreme Court, this cause is hereby referred to Hon. William K. Love, Judge of the Circuit Court of the 10th Judicial Circuit in and for Polk County, Florida, with directions to take testimony and receive evidence as to the factual matters put in issue by the Petition for Writ of Habeas Corpus and the Response thereto, and to make his findings and recommendations thereon, and to file said transcribed report, findings, and recommendations to this Court in this cause in due course.
In furtherance hereof the Clerk of this Court is directed to transmit the entire record in this cause to the Clerk of the Circuit Court for the 10th Judicial Circuit for delivery by him to Judge Love. Said record, together with such other documents as may be filed before Judge Love in connection with his hearing will be thereupon returned to the Clerk of this Court for final consideration and determination of this cause.
The Attorney General's motion filed herein on July 13, 1971, to strike certain portions of the Reply Brief of petitioner theretofore filed herein is granted insofar as any discrepancies appear therein with the authenticated transcript of record of the trial Court proceedings referred to in said motion to strike.
Judge Love, as commissioner for this Court, is hereby authorized to appoint counsel for petitioner Robinson and subpoena such witnesses as he or his counsel may in good faith desire. Judge Love to be the sole judge of the reasonableness of such request; all at the expense of Polk County.
So ordered.
HOBSON, J., concurs.
MANN, J., concurs specially.
I agree that the defendant is entitled to delayed review under Baggett v. Wainwright, Fla. 1969, 229 So.2d 239, but that such review must inevitably result in affirmance. This is so because the record submitted to us shows conclusively that the plea of guilty was knowingly and voluntarily entered. See Steinhauser v. State, Fla.App. 1969, 228 So.2d 446. Consequently, I would grant the writ and dismiss the appeal on the court's own motion as frivolous.