26 So. 2d 786 | Fla. | 1946
Diamante Urga was convicted of using certain instruments and other means wilfully and feloniously in and upon a female person with the intent to procure a miscarriage, in violation of Section 797.01, Florida Statutes, 1941, F.S.A. On appeal the judgment was affirmed. See Urga v. State,
An appeal has been taken by the defendant from this order. The question for decision is presented in briefs of counsel, as follows: Where the Supreme Court of Florida affirms a judgment of conviction and subsequently there is presented to the Supreme Court a proposed petition for writ of error coram nobis to the lower court with application for leave to file the same and the Supreme Court after full argument on the sufficiency of the proposed petition grants leave for it to be filed in the lower court, does the granting of such leave to file establish the sufficiency of the petition for writ of error coram nobis?
We are of the view that this question must be answered in the affirmative. In Chambers v. State,
"When the Supreme Court has made its order upon a petition duly presented allowing the petitioner to apply to the trial court for a writ of error coram nobis, it is equivalent to an order or mandate that the lower court allow the writ to the end that the question of fact may be inquired into, and if it be found that it is true, then the judgment entered should be anulled and the proceeding in the cause taken up again at the point where the error in fact occurred."
"In a case like the one at bar, where this court affirmed the judgment and allows the petitioner to apply for a writ of error coram nobis, its judgment allowing such application determines the legal effectiveness of the alleged fact and directs the trial court to annul the judgment if the fact alleged is *797 found to be true. If it were not so, the proceeding would be a farce, for the trial judge might hold the fact on such a plea to be insufficient. On writ of error taken to that judgment this court would either be bound to adhere to its former order allowing the application, thereby deciding the legal effectiveness of the admitted fact to annul the judgment, or it would be compelled to recede from its former pronouncement and hold with the trial judge. So that way to test the legal sufficiency of the facts is obviously precluded in a case like this where the judgment sought to be anulled has been affirmed by the Supreme Court."
Counsel for the State contend that Chambers v. State, supra, from which we have quoted at length, has been overruled by the later decision of Johnson v. State,
It follows from what has been said that the judgment or order appealed from must be reversed with directions that the trial court allow the petition to be filed and that the cause proceed in accordance with approved procedure either by plea filed by the State and taking of issue upon the allegation of fact in the application for the writ, or by special plea setting *798
up any matter in confession and avoidance, as is pointed out in Chambers v. State,
It is so ordered.
CHAPMAN, C. J., TERRELL, BROWN, BUFORD, THOMAS and ADAMS, JJ., concur.