Joseph Louis GIBSON, Appellant,
v.
The STATE of Florida, Appellee.
District Court of Appeal of Florida. Third District.
Rоbert L. Koeppel, Public Defender and Phillip A. Hubbart, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Ardеn M. Siegendorf, Asst. Atty. Gen., for appellee.
*767 Before BARKDULL, C.J., and HENDRY and SWANN, JJ.
SWANN, Judge.
On July 31, 1958 an indictment was filed in the Circuit Court of the Eleventh Judicial Circuit in and for Dadе County, Florida, charging the appellant with the crime of first degree murder. The appellant executed and filed a motion requesting the appointment of Attorney Herman Methfessel to represent him in this matter. Accordingly, an order was entered appointing the aforesaid attorney as counsel for the appellаnt.
Following the appointment of counsel, the appellant was arraigned and entered a pleа of "not guilty" to the charge.
On September 9, 1958 the appellant moved the court for a psychiatric examination and an order granting the same was entered on September 11, 1958. Following the examination, the trial cоurt entered its order adjudging the appellant to be sane and competent to stand trial.
On or about Octоber 13, 1958 the appellant, with the advice of counsel, voluntarily withdrew his prior plea of "not guilty" to the charge of murder in the first degree, and entered a plea of "guilty" to the crime of murder in the second degree. The trial court accepted the change of plea.
On October 13, 1958 the appellant was adjudicated guilty of the crime of murder in the second degree, and sentenced to a term of life imprisonment in the State Penitentiary.
The appellant has filed his petition for relief, pursuant to Criminal Rule Number One, F.S.A. ch. 924 Appendix, which alleged in substance:
(1) That appellant was denied the assistance of counsel after making a request;
(2) That illеgal and unlawful evidence was obtained from him under duress; and
(3) That appellant was denied a preliminary hearing.
The trial court denied appellant's petition and thereafter the appellant timely filed his notice of appeal to this court.
The law is well settled in Florida that a trial court may summarily deny a Rule One petition without a full evidentiary hearing when the allegations in the petition, even if true, fail to constitute valid grounds for collateral attack. Marti v. State, Fla.App. 1964,
It is also wеll established that allegations conclusively refuted by the files and records in a case do not constitute vаlid grounds for collateral attack. Sampson v. State, Fla.App. 1963,
Appellant's first allegation is as follows:
"Movant is an asthmatic, and has been from сhildhood. Movant became very ill and repeatedly requested to see a doctor, or be allowed to call a lawyer, or a friend. Movant was denied all requests."
This allegation is refuted by the record, which indicаtes that the trial court appointed Attorney Herman Methfessel at the personal request of the aрpellant prior to the time of arraignment. In addition, a petition filed with the trial court by the appellant's аttorney stated that he was contacted by the appellant "a few days after he was arrested on а warrant from the Justice of the Peace Court" and that he "talked to the defendant several times, as well аs to members of his family, in preparation for the preliminary hearing, which was held on July 22, 1958".
*768 Accordingly, the first allegation of the petition is conclusively refuted by the record and the trial court was entitled to summarily reject it.
The appellant's second allegation was:
"Movаnt was abused, cursed and intimidated until movant signed what he thought to be a statement of his movements and whereabouts on the night of the alleged killing."
As pointed out above, the appellant withdrew his plea of "not guilty" to the crime of first degree murder, and entered a plea of "guilty", with the advice of counsel, to second degree murder. Consequently, this statement was never used against him and proof of guilt was not required. Kirkland v. State, Fla.App. 1964,
In addition, a рetition was filed by appellant's trial counsel in which the trial counsel made a full and complete disclоsure as to the reasons for the change of the plea from "not guilty" of murder in the first degree to "guilty" of murder in the second degree. The attorney for petitioner indicated that the appellant freely and voluntarily changed his plea upon the advice of counsel, and there was no showing that any alleged statement оf the appellant had ever been used against him. It should also be remembered that a voluntary plea оf guilty in a criminal case waives all defects other than jurisdictional, 2 Fla.Jur., Appeals, § 312, P. 668, citing Mixon v. State, Fla. 1951,
Accordingly, the second allegation of the petitioner is conclusively refuted by record and the trial court was entitled to summarily reject it.
Appellant's final allegation is that he was denied a preliminary hearing.
It has been continually held in this state that a preliminary hearing is not an essential stage in a Florida сriminal proceeding. Baugus v. State, Fla. 1962,
It is therefore the opinion of this court that all of the allegаtions contained in the appellant's petition are conclusively refuted by the record and the files in this cause, and that the order of the lower court denying the petition for relief is affirmed.