| [1] | SUPREME COURT OF FLORIDA |
| [2] | No. 51633 |
| [3] | 1979.FL.42123 <http://www.versuslaw.com>; 371
So. 2d 482 |
| [4] | March 15, 1979 |
| [5] | CLIFFORD HALLMAN, PETITIONER, v. STATE OF FLORIDA, RESPONDENT |
| [6] | Jack O. Johnson, Public Defender, and Robert H. Grizzard, II, Asst.
Public Defender, Bartow, for petitioner. |
| [7] | Jim Smith, Atty. Gen., and Charles Corces, Jr., Asst. Atty. Gen.,
Tampa, for respondent. |
| [8] | Alderman, J. England, C.j., Adkins and Sundberg, JJ., Concur Overton,
J., Concurs in part and dissents in part with an opinion, with which Boyd
and Hatchett, JJ., Concur |
| [9] | Author: Alderman |
| [10] | Clifford Hallman, by petition for writ of certiorari,
seeks review of the decision of the district court in
Hallman v. State, 343 So.2d 912 (Fla.2d
DCA 1977). We originally granted certiorari because of an apparent
conflict between that decision and Fast v. State, 221 So.2d 203 (Fla.3d DCA 1969), but we have now determined that no
direct conflict exists and that certiorari is not the appropriate remedy.
However, pursuant to article V, section 2(a), Florida Constitution, which
provides that no cause shall be dismissed because an improper remedy is
sought, we treat Hallman's petition as a request for
permission to apply to the trial court for writ of error coram nobis
addressed to his conviction of first degree murder and his sentence of
death. Having considered his request, we find that it is legally
insufficient. |
| [11] | Hallman was indicted for the first degree murder of
Eleanor Groves, it being alleged that Hallman, with
premeditated design, caused Groves' death by inflicting fatal cuts on her
throat and neck. Hallman was tried, convicted, and then sentenced to
death. On December 11, 1974, this Court affirmed the conviction and
sentence. Hallman v. State, 305 So.2d 180 (Fla.1974), Cert. denied, 428 U.S. 911, 96 S. Ct. 3226, 49
L. Ed. 2d 1220 (1976). |
| [12] | Approximately two years later, Hallman filed a
three-part motion with the sentencing circuit judge. The motion alleged
that in 1975 the administrator of the estate of Eleanor Groves filed suit
against Tampa General Hospital contending that Mrs. Groves died as a
result of the negligence of the hospital; that the hospital had settled
the lawsuit in favor of Mrs. Groves' estate; that Hallman's
wrongful acts were not the cause of death of Mrs. Groves; and that if in a
new trial the jury found that the hospital's negligence was an intervening
cause of death, the jury could find him not guilty of homicide.
Hallman requested the following relief: that the trial judge
reduce the sentence of death; or that the trial court set aside the
sentence of death and grant a new trial on the grounds of newly discovered
material evidence; or that the trial court issue a writ of error coram
nobis. The trial court denied all three requests. |
| [13] | Hallman appealed to the district court which held that
it was without jurisdiction to review the trial court's refusal to reduce
the sentence because that portion of the order was non-appealable.*fn1
It also held that Hallman's motion under Florida Rule of
Criminal Procedure 3.850, to set aside the judgment and grant a new trial,
was improper because newly discovered evidence cannot be a basis for
relief under that rule. It further held that Florida Rule of Criminal
Procedure 3.600(a)(3) could not support the grant of a new trial because
Hallman's motion was untimely under that rule. Finally, it
held that a writ of error coram nobis can be issued only by "the appellate
court which had previously entertained an appeal from the final judgment
in the case and affirmed it by its mandate," in this case the Supreme
Court of Florida. See Hallman v. State, 343 So.2d
912, 913 (Fla.2d DCA 1977). |
| [14] | We approve the decision of the Second District in all respects and
agree that it correctly found that the trial court was without
jurisdiction to entertain Hallman's petition for writ of
error coram nobis because permission to seek such relief must first be
obtained from this Court. |
| [15] | The writ of error coram nobis was available at common law in both
civil and criminal cases. This Court long ago recognized that coram nobis
was applicable to both civil and criminal cases in this state. As we
explained in Lamb v. State, 91 Fla. 396,
107 So. 535 (1926): |
| [16] | Common-law writs of procedure that have not been abrogated or
superseded by the Constitution or by statutory regulations are available
in this state, but the use of such judicial writs may be regulated by
statute or by rules of court duly promulgated under statutory authority. .
. . 107 So. at p. 537. |
| [17] | Although writs of error coram nobis have now been abolished in civil
cases by rule 1.540(b), Rules of Civil Procedure, this remedy remains
viable in criminal cases because it has not been expressly abrogated or
superseded. Our recent decision in Ohio Casualty Co. v. Parrish, 350 So.2d 466 (Fla.1977), where the issue was whether
rule 1.540, Rules of Civil Procedure, allows the trial court to entertain
a timely motion to modify a civil judgment without first obtaining
permission of the appellate court, is not applicable in this case where
coram nobis is sought in a criminal case.*fn2 |
| [18] | The requirements of a writ of error coram nobis have been set out in
numerous cases from this Court. A petition for this writ addressed to the
appellate court must disclose fully the alleged facts relied on; mere
conclusory statements are insufficient. The appellate court must be
afforded a full opportunity to evaluate the alleged facts for itself and
to determine whether they establish prima facie grounds. Lamb v. State,
supra; Washington v. State, 92 Fla. 740,
110 So. 259 (1926); Urga v. State, 157 Fla.
794, 26 So.2d 786 (1946). Furthermore, the
petition should assert the evidence upon which the alleged facts can be
proved and the source of such evidence. Russ v. State, 95 So.2d
594 (Fla.1957). The function of a writ of error coram nobis is
to correct errors of fact, not errors of law. Leavitt v. State,
116 Fla. 738, 156 So. 904
(1934). The facts upon which the petition is based must have been unknown
by the trial court, by the party, or by counsel at the time of trial, and
it must appear that defendant or his counsel could not have known them by
the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So.2d 706 (1944). |
| [19] | In considering a petition for writ of error coram nobis, the appellate
court has the responsibility to determine the legal effect of the facts
alleged upon the previously entered judgment. When the appellate court
finds that the facts are sufficient in legal effect, the next step is for
the trial court to determine the truth of the allegations in an
appropriate evidentiary hearing. Chambers v. State, 117 Fla.
642, 158 So. 153 (1934). |
| [20] | The general rule repeatedly employed by this Court to establish the
sufficiency of an application for writ of error coram nobis is that the
alleged facts must be of such a vital nature that had they been known to
the trial court, they Conclusively would have prevented the entry of the
judgment. Williams v. Yelvington, 103 Fla. 145, 137 So. 156 (1931); House v. State, 130
Fla. 400, 177 So. 705 (1937); Baker v.
State, 150 Fla. 446, 7 So.2d 792
(1942); Cayson v. State, 139 So.2d 719 (Fla.1st DCA),
Appeal dismissed, 146 So.2d 749 (Fla.1962). In Russ
v. State, this Court expressly stated: "The showing must be such that if
the matters shown had been before the trial court when judgment was
entered, the court Would have been precluded from entering the judgment." 95 So.2d at 597 (emphasis added). This traditional
"conclusiveness test" in error coram nobis proceedings is predicated on
the need for finality in judicial proceedings. This is a sound principle,
for litigants and courts alike must be able to determine with certainty a
time when a dispute has come to an end. |
| [21] | Turning now to the specific allegations in the present case, we find
that Hallman failed to meet the prerequisites which would
warrant granting the writ of error coram nobis. He alleged the ultimate
conclusion of negligence on the part of the hospital without disclosing
fully the specific facts upon which he relies for this conclusion. In
addition, the alleged medical malpractice of the hospital could have been
known to Hallman or his counsel at the time of trial through
use of due diligence. The fact that the hospital, subsequent to
Hallman's trial settled a wrongful death claim made by Mrs.
Groves' estate is irrelevant. This negotiated settlement in no way
establishes that the hospital caused her death. If the hospital is guilty
of medical malpractice, this fact could have been established by medical
records and the medical witnesses that were available, and could have been
discovered through use of due diligence at the time of
Hallman's trial. |
| [22] | More importantly, even if the hospital's alleged medical malpractice
could not have been known at the time of Hallman's trial,
the writ of error coram nobis would not lie because the fact of the
hospital's negligence would not have precluded Hallman's
conviction. As this Court explained in Johnson v. State, 64 Fla.
321, 323, 59 So. 894, 895
(1912): |
| [23] | A defendant cannot escape the penalties for an act which in point of
fact produces death, which death might possibly have been averted by some
possible mode of treatment. The true doctrine is that, where the wound is
in itself dangerous to life, mere erroneous treatment of it or of the
wounded man suffering from it will afford the defendant no protection
against the charge of unlawful homicide. . . . |
| [24] | And as the district court stated in Tunsil v. State, 338
So.2d 874, 875 (Fla.3d DCA 1976): |
| [25] | Appellant seeks a reversal of his conviction for manslaughter on the
grounds that the victim's death could have been avoided through
affirmative medical treatment. Appellant argues that the lack of
affirmative medical treatment constituted an intervening cause relieving
him of any criminal responsibility for the victim's death. |
| [26] | In support of his argument, appellant attempts to distinguish those
Florida cases holding that affirmative medical treatment will not break
the chain of causation between a perpetrator's act and his criminal
responsibility for the victim's death. See, e. g., Adams v. State, 310 So.2d 782 (Fla.2d DCA 1975), and the cases cited
therein. |
| [27] | We are of the opinion that appellant's distinction between affirmative
medical treatment and lack of affirmative medical treatment is without
merit, and that, based on the facts appearing in the record on appeal, the
case of Johnson v. State, 64 Fla. 321, 59
So. 894 (1912), is controlling. The record shows that
appellant's actions were the proximate cause of the victim's initial
injury, i. e., brain damage, and we find no intervening cause relieving
appellant of the criminal responsibility for the victim's death. . .
. |
| [28] | So, even if the hospital's negligence had contributed to the victim's
death, this fact would not entitle Hallman to a new trial on
his conviction. |
| [29] | Likewise, he would not be entitled to a rehearing on his sentence
because, aside from the fact that the medical evidence was in existence
and could have been known to Hallman or his counsel at the
time of trial through use of due diligence, even if evidence of the
hospital's alleged malpractice had been presented during the trial, the
trial court would not have been precluded from entering the death
sentence. |
| [30] | Hallman's request for permission to file a petition for
writ of error coram nobis is denied. |
| [31] | It is so ordered. |
| [32] | ENGLAND, C. J., and ADKINS and SUNDBERG, JJ., concur. |
| [33] | OVERTON, J., concurs in part and dissents in part with an opinion,
with which BOYD and HATCHETT, JJ., concur. |
| [34] | OVERTON, Justice, concurring in part, dissenting in
part. |
| [35] | I agree with the majority opinion in its holding that a hospital's
negligence cannot be grounds for reversal of a defendant's conviction of
first-degree murder merely because the death of the victim might possibly
have been averted by some other mode of treatment. See Johnson v. State, 64 Fla. 321, 59 So. 894
(1912). |
| [36] | I strongly dissent, however, from that portion of the majority opinion
which holds that subsequently discovered facts, if true, relating to
alleged medical malpractice of Tampa General Hospital in its treatment of
the victim cannot now be considered as a factor in determining the
appropriateness of the death sentence in this cause. |
| [37] | This holding by the majority in effect says that we no longer have any
responsibility to assure justice and fairness in the application of the
death penalty in this case and uses the need for finality in our decisions
as a basis for that determination. |
| [38] | In the instant case, Hallman was indicted in 1973,
tried, convicted, and sentenced to death. This author, together with
Justices Adkins, Roberts, Dekle, and McCain, affirmed the conviction and
approved the imposition of the death penalty in this cause in December of
1974. Hallman v. State, 305 So.2d 180
(Fla.1974), Cert. denied, 428 U.S. 911, 96 S. Ct. 3226, 49 L. Ed. 2d 1220
(1976). Justices Boyd and Ervin dissented. In the following year, 1975,
the estate of the victim filed suit asserting malpractice by the hospital.
The hospital settled the malpractice suit with the estate, and
Hallman commenced this proceeding. As a justice who must
make the final determination as to whether the death penalty should be
imposed, I would hope I would always have the opportunity to review that
determination whenever new relevant evidence is discovered. |
| [39] | My dissent is from the holding of the majority that even if the
hospital was negligent, that factor should not now be considered as to
whether Hallman should live or die. That holding is totally
wrong. It is a factor which, if known, would have been a proper item for
consideration by the jury in the sentencing phase, by the trial judge when
he imposed sentence, and by this Court when we reviewed the case. I
realize that this alleged malpractice, if true, is not controlling in
itself, but it is a material and relevant factor which should be
considered in determining the appropriateness of the death
sentence. |
| [40] | As one of the two justices remaining on this Court who approved the
imposition of the death penalty in this case, I believe that the
occurrence of any malpractice in treating the victim and the extent of
that malpractice are relevant facts which should be considered in the
sentencing phase of this proceeding. I totally disagree with the
conclusion reached by the majority that the fact that the hospital settled
a wrongful death claim made by the victim's estate is irrelevant. In my
view, that fact is a sufficient basis to inquire further to determine if
the allegations of malpractice are true. If the malpractice allegations
are true, that circumstance would be a significant but not controlling
factor in determining the appropriateness of the death sentence in this
cause. |
| [41] | It is also important to recognize that if the settlement of the
malpractice suit had been discovered subsequent to trial but in sufficient
time to permit filing of a motion for new trial under Florida Rule of
Criminal Procedure 3.600(a)(3),*fn1
the "probability test" of a motion for a new trial would have been applied
in this case rather than the "conclusiveness test" of a petition for a
writ of error coram nobis. |
| [42] | A death case should be an exception to the "conclusiveness test." In
my view, the rigid application of the "conclusiveness test" is not proper
in cases where the death penalty has been imposed. As Mr. Justice Stevens
reasoned in writing for the plurality in Gardner v. Florida, 430 U.S. 349,
351, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977), the death penalty is
different from any other means of punishment, both in its severity and in
its finality. I also believe our failure to consider these allegations on
the merits in the sentencing phase will result in a weakening of our death
penalty statute and could lead to a reversal of this cause under the
principles expounded by the United States Supreme Court in Lockett v.
Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). The majority
in Lockett stated that: "The need for treating each defendant in a capital
case with that degree of respect due the uniqueness of the individual is
far more important than in non-capital cases." 438 U.S. at 605, 98 S. Ct.
at 2965, 57 L. Ed. 2d at 990. |
| [43] | In conclusion, the majority's mistake in this case is not allowing the
issue of the alleged malpractice to be considered on its merits in regard
to the appropriateness of the death penalty in this cause. |
| [44] | I would find the petition for writ of error coram nobis to be prima
facie sufficient insofar as it pertains to a new sentencing proceeding and
direct the trial court to determine the truthfulness of the allegations,
and, if the allegations are true, a new sentencing proceeding should
commence. |
| [45] | BOYD and HATCHETT, JJ., concur. |
|
| |
| Opinion Footnotes | |
|
| |
| [46] | *fn1
Florida Rule of Criminal Procedure 3.800(b), governing reduction of
sentences, has been amended since the date of trial court's order. As
amended, rule 3.800(b) does not apply to cases in which the death penalty
is imposed. |
| [47] | *fn2
We note that the federal courts have also continued to recognize the
viability of the writ of error coram nobis in criminal cases although rule
60(b) of the Federal Rules of Civil Procedure expressly abolished the writ
of error coram nobis in civil cases. United States v. Morgan, 346 U.S.
502, 74 S. Ct. 247, 98 L. Ed. 248 (1953); United States v. Norman, 391
F.2d 212 (6th Cir. 1968), Cert. den., 390 U.S. 1014, 88 S. Ct. 1265, 20 L.
Ed. 2d 163; Grene v. United States, 448 F.2d 720 (5th Cir.
1971). |
|
| |
| Dissent Footnotes | |
|
| |
| [48] | *fn1
The rule states:
(a) The court shall grant a new trial if any of the following grounds
is established: (3) That new and material evidence, that if introduced at
the trial would probably have changed the verdict or finding of the court,
and that the defendant could not with reasonable diligence have discovered
and produced upon the trial, has been
discovered. |