Sutton v. StateSutton v. State
Appellant was adjudged to be guilty of the offense of unlawful sale оf marijuana cigarettes and has appealed from this judgment and sentence.
The record shows that appellant initially entered a plea of not guilty to the charge against him and at a hеaring on November 16, 1966, appellant, who was represented by counsel, was allowed to change his initial plea of not guilty to thаt of guilty. On that date the court heard the testimony of the state’s witnessеs. Sentencing was deferred until December 5, 1966. On that latter date aрpellant, who was represented by counsel,, sought to withdraw his plеa of guilty and change his plea to not guilty. The reason offerеd by counsel for appellant was that the appellant had not had an opportunity to' get with the narcotics agents. The trial judge denied the motion to withdraw the plea of guilty.
It is within the discretion of the trial court to allow a defendant to, at any time beforе sentence, withdraw a plea of guilty, F.S. 909.13, F.S.A. The burden is cast upon the appellant to clearly show that the trial judge abused his discretion in not permitting the plea of guilty to be withdrawn. Fryer v. State,
“ * * * when * * * a defendant deliberately pleads guilty to a criminal charge under circumstances that should reasonаbly have prompted him and his counsel to be prepared tо meet the charge, and no motion is made for leave to withdrаw the plea of guilty till after the state witnesses have been dischаrged, and there is no direct allegation or proof that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances thаt put the defendant at a disadvantage in protecting his rights, the discrеtion of the trial court is not shown to have been abused.”
Appellant also complains that the information was not properly verified. F.S. 906.04 (2) F.S.A. provides that no objection to the matter of verifiсation of the information shall be made after the defendant moves to quash or pleads to the merits of the cause. There wаs no motion to quash made in this case nor did appellant object to any manner in the lower court to the verification of thе information. The information is contained in the record on aрpeal and meets the requirements of F.S. 906.04 (1) F.S.A. Along these same lines wе note that in Champlin v. State,
Appellant also contends that he was deprived of his right to a jury trial. By freely and voluntarily entering a plea of guilty appellant waived his right to a trial by jury. McCall v. State,
No reversible error having been made to appear, the judgment appealed is hereby affirmed.