ALLAN BRYANT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Bryant appeals an order denying his Rule 1 petition for relief from a 1947 guilty plea to rape. The court affirmed the denial, holding that the trial court properly exercised discretion in conducting the evidentiary hearing without Bryant's physical presence and that Bryant failed to create a sufficient appellate record for review.
The trial court did not err in exercising its discretion to hold the hearing without the appellant's physical presence, as this is discretionary with the trial judge. Additionally, the appellant failed to make error appear on the appellate record because the evidentiary testimony was not reduced to writing and no sufficient record was established for appellate review.
“This is a matter peculiarly within the discretion of the trial judge.”
Establishes that the trial court had discretionary authority to conduct the hearing without the appellant's physical presence.
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Join FLexlaw to unlock all legal intelligenceBryant was indicted for rape on December 27, 1945, and entered a guilty plea on January 20, 1947, receiving a life sentence. On January 28, 1965, he f…
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The appellant seeks review of an order denying his petition for relief, filed pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
On December 27, 1945, the appellant was indicted for rape. On January 20, 1947, he withdrew his plea of not guilty and entered a plea of guilty. He was adjudged *10guilty and sentenced to life imprisonment in the State penitentiary. On January 28, 1965, the appellant filed his motion to vacate, alleging he was held incommunicado in jail until he had given a statement; that said statement was obtained by coercion; that he was not taken before a magistrate to be advised of his right; that he did not meet his lawyer prior to or after trial; and that he was confused by an unknown voice at time of trial, resulting in his pleading guilty. The trial judge granted a hearing on the motion to vacate, but denied the public defender’s motion to have the appellant transferred from Raiford for a full hearing. Subsequent to the hearing on the motion, the trial court entered the order appealed herein.
The appellant contends that the trial court committed error in not having him present at the evidentiary hearing on the Rule No. 1 motion. We find this to be a discretionary matter with the trial court, and do not find error in this regard. See: State v. Weeks, Fla.1964, 166 So.2d 892; Ballard v. State, Fla.App.1967, 200 So.2d 597. When there are questions of fact to; be decided, it may be the better practice to receive evidentiary statements from a movant either by his being present in the court or by written interrogatories or by deposition taken before a commissioner at the penal institution wherein the movant is incarcerated. But, we do not hold that it is necessary to either have the petitioner present or to receive evidence from him. This is a matter peculiarly within the discretion of the trial judge. See: Kimbrough v. United States, 5th Cir.1955, 226 F.2d 485. The evidence taken before the trial court was not reduced to writing, and this court is unable to determine what evidence was adduced before the trial judge.
As a general proposition, it is incumbent upon an appellant to make error appear on an appellate record. See: Coleman v. State, Fla.App.1967, 193 So.2d 699; Plymale v. State, Fla.App.1967, 201 So.2d 85. Criminal Procedure Rule No. 1 proceedings partake of a civil nature. See: State v. Weeks, supra; Barton v. State, Fla.App.1965, 176 So.2d 597; Whitney v. State, Fla.App.1966, 184 So.2d 207. Even though a court reporter is not present, there are methods of establishing what evidence was before a trier of fact. See: Moyer v. Moyer, Fla.App.1959, 114 So.2d 638; Downing v. Bird, Fla.App.1962, 145 So.2d 559; Potash v. Dry & Company, 8 Fla.Supp. 174. The appellant was represented by counsel at the Rule No. 1 hearing, and could have for the purposes of appeal [if no court reporter was present] established a record in order that this court might determine the correctness of the trial court’s ruling.
The appellant not having presented us with a record sufficient for us to determine the correctness of the order here under review, we have no alternative but to affirm the action of the trial court. See: State v. Piehl, Fla.1966, 184 So.2d 417.
Affirmed.
PEARSON, J., dissents.
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State v. Madison Lee Reynolds, 238 So. 2d 598 (Fla. 1970)…s, 166 So. 2d 892 (Fla.1964). If the motion reflects substance and there is nothing conclusively in the record to the contrary, a hearing should be granted. Even in this instance the presence of the prisoner is not always required. Bryant v. State, 204 So. 2d 9 (Fla.App.3d 1967); Ballard v. State, 200 So. 2d 597 (Fla.App.3d 1967). This is a matter within the discretion of the Court, State v. Weeks, supra, which must be exercised in the light of other applicable principles of law, including the requirements…
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Dalton Abbott v. State, 334 So. 2d 642 (Fla. 3d DCA 1976)…from the evidence are to be in favor of the verdict or judgment of guilt. Crum v. State, Fla. App.1965, 172 So. 2d 24, 25. As a general proposition, it is the burden of the appellant to make error appear in the record. Bryant v. State, Fla.App.1967, 204 So. 2d 9. Conflicts in evidence and the fact that it may have been susceptible of differing inferences and presented the trier of the facts with questions as to credibility of witnesses and weight to be given to testimony and other evidence presented, will n…
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Sullivan v. State, 372 So. 2d 938 (Fla. 1979)…ng for a unanimous Supreme Court, said: If, upon hearing, there are questions of fact within the personal knowledge of the prisoner to be resolved, then the prisoner should be given an opportunity to testify. As stated in Bryant v. State [Fla.App., 204 So. 2d 9], supra: “When there are questions of fact to be decided, it may be the better practice to receive evidentiary statements from a movant either by his being present in the court or by written interrogatories or by deposition taken before a commissio…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- State v. Weeks, 166 So. 2d 892 (Fla. 1964)
- Whitney v. State, 184 So. 2d 207 (Fla. 3d DCA 1966)
- Moyer v. Moyer, 114 So. 2d 638 (Fla. 3d DCA 1959)
- Plymale v. State, 201 So. 2d 85 (Fla. 3d DCA 1967)
- Lottie Sykes Downing v. Bird, 145 So. 2d 559 (Fla. 3d DCA 1962)
- State v. Piehl, 184 So. 2d 417 (Fla. 1966)
- Chambers v. State, 176 So. 2d 597 (Fla. 3d DCA 1965)
- Lum Coleman v. State, 193 So. 2d 699 (Fla. 1st DCA 1967)
- Ballard v. State, 200 So. 2d 597 (Fla. 3d DCA 1967)
- Kimbrough v. United States, 226 F.2d 485 (5th Cir. 1955)