# Opposition Brief — Florida v. Torres > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1990%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 869 ## Text IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1985 NO. 65—F975 " 95-1978 THE STATE OF FLORIDA, Petitioner, vs. URBANO TORRES, Respondent. Supreme Ceurt. U.S. rILLE® JUN 28 1986 JOSEPH F. SFAI.IOL, JR. CLERA RECEIVED | JUN 23 1996; | OFFICE CF THE CLERK, SUPREME COURT. U.S ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF RESPONDENT IN OPPOSITION Respectfully submitted, BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1351 Northwest 12th Street Miami, Florida 33125 (305) 545-3005 ELLIOT H. SCHERKER Assistant Public Defender Counsel for Respondent ae TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ..cccccccvcceece eocccevccce cocccce es STATEMENT OF THE CASE.....-cce Coc ce cece cece cc ccccccccces 1 REASONS FOR DENYING THE WRIT... cc cccccccccces cocccccecce 6 CONCLUSION. ..cccccecee COC eee Reese eed Dee EEE EOE SSO ES OSEOS | TABLE OF CITATIONS PAGE ANDREWS V. STATE 160 So.2d 726 (Fla.App. 1964)........ vanes ch micediaa wide 10 ASHLEY V. STATE 158 So.2d 530 (Fla.App. 1963).......e- iv emvencateuekesnann Oe BOYKIN V. ALABAMA Se ny Da cacodsneéhean Ae 6 =~! besis of @ primes facie case, MR. NOVICK: Let's go through it all, do it once, i MR. EVANS: Am I the moving party” MR. MOVICK: You @re the moving perty. MR. EVANS: At this time I call the defendant to the witness stand. THe COURT: Step forward, raise your right hand and be sworn, pleése. (Thereupon, the interpreter, MARY ROBERTS, was duly sworn to faithfully translate all questions and all answers after which the defendant herein, URBANO TORRES, was @uly sworn and testified through the interpreter as follows: THE CLERF: State your name for the record. THE INZERFRETER: I have 6lready. DIRECT EXAMINATIOKX BY MR, EVANS: . A. . Could you state your name’ (Through the interpreter) Urbano Torres. Are you the Urbanc Torres thet plec guilty tec the crime of first degree murder in c&se number &3-424€&° A. . Yes. what is your present status? Are you serving @oranfence now’ Cee.cina,. REOztE-ee C-eeurr Cor TELEPHONE 374-1714 111 S W 3rd Street / Suite 401 / Miam: Flonda 33130 CJ 4 A. Yes. - q What was the crime you pled guilty to? on A. First degree homicide, 4 C. Is it your understanding that your sentence ° | would be a mandatory 25 years without parole’ A. That is what I had understood. ‘ Q Now, when you pled guilty, according to your affidavit, you stated in your affidavit that, firet of 211, the confession you gave was coerced; is that true? | A. That is the truth. ! Q Could you tell the Court what happened, that mde you understand it was coerced” What did the police tell you; whet did they threaten you with’ A. The pot.ce threatened me. They tried to hit me and told me--showed me @ photograph and said that thet men knew me and going to accuse me for something else. | Q Row, where was this at? | A. In the station with a detective. " Q. Do you happen to rememer the detective's name’ a A. Ne. ’ | Q Would you recognize this detective if you sev | him’ : | A. Yes. - “ Could it weve eee Serect ive Eloy Perez‘ Orriee. Mesoeren revi Cover 4 TELEPHONE 374-1714 111 S W. 3rd Street / Suite 401 / Miam: Flonds 33130 ESES__— A. Yes, that one. : C Now, did he threaten you with violence” A. Yes. y C. Could you be specific? What did he say and what "| did he do? ft A. That he told me that {f I did not declare that : I was guilty, they were going to accuse me of being a homosexual, Q Besides that, did he say anything else that forced you to give this confession’ A. He told me that if I came okay from them he was going to get an epartment for me, C Could you explein that answer a little bit more’ A. He wes offering--making an offer to me. kell, he wee trying to buy me that wéy. c Are you trying to s&s thet he offered te finde you an apartment if you pled guilty or confessed* A. No, not thet. First of all, they threatened me and then after that they were--well, as if they were trying to buy m. C I am meinly interestec in the thrests. How did they threéten you’ If they threetene? you three different ways, tell mc all three different ways and please be specific. How were you th | ay q° y JOE SEGRE, Orr.ic¢ 2. Rreor-ce S-seeci Seve? > TELEPHONE 374-1714 111 S W. 3rd Street / Suite 401 / Miam: Flonda 33130 _ OE ; A. They tried to hit me and they showed m ae | photograph. > © , 2 C Spanish? A. q Spanish’ A. q A Q Seventh grade, Can you read’ A little. You don't speak English; correct” No, You don't write English’ (Shakes head.) You have to s&y the words. No, And the little reading you can do is in Yes. Are you & good reader or @ poor reéder in I reé¢d poorly. De gycu write in Spanish’ A little. Are you a good writer in Spanish or a poor writer in Spénish?’ A. C h. « No, not too good, but I can write. Rov lonr have gou been ir. Americe’ Four yectre. Before that you lived in Cubes all of your life’ Yes. Your ettorney & [kee fo you through an inter Orricie, Mewoeree Crecuis Cove TELEPHONE 374.1714 ; 15 11S W 3rd Street / Suite 401 / pMiam: Fiornda 33130 ran ae ee a a 11 preter; correct? A Yes. 0 During this conversation did you understand everything that was being said to you through the inter- preter? : Yes. . 0 You have sworn to the allegations set forth in this motion that you filed; correct? A Yes. Q In this affidavit that you swore to you state, "Seeing no possible way to win in this situation, since his Court-appointed counsel did not’"-- Ls Yes--- Qa --conviction and given the threat to the police, the defendant unecuivocally pled guilty.” Ie that your allecation today in Court? a Yee. MR. EVANS That’s it for me at this point. THE COURT: Mr. Novick? CROSS-EXAMINATION BY MR. NOVICK: 0 Arc. Torres, when you were arrested here in Miami for this csse*, at that time you were on probation, weren't you, for an agcravateé assault which was actually e murder in McArthur Park (phonetic) in Los Angeles, ané JOE TROIANOD Sel So e-ce ‘ - fe ¢e- ad ae a ee PEabr Wont 574-1756 191 S W 3-2 Strect Suc 62" Mem Blend 3213 12 iy you knew that, right? . id - MP. EVANS: I object to that as being irrele- vant. 4 THE COURT: Overruled. A rey (By Mr. Novick) You knew you were on probation 6 | to the Court in Los Angeles because you pled guilty out , there to some kiné of assault with a deadly weapon, which - really led to the death of someone? You killed someone " in McArthur Park in Los Angeles; right? 10 A Yes. 1 MR. EVANS: Objection. It is a compound I. - question. I'm not sure he understands. He is saying he was on probation then. I think it is M4 kind of unclee-. 1 TRE COURT: If you want to clarify it, you can. I 0 (By Mr. Novick) Mr. Torres, you had several Giscussions with your Court-appointed attorney, Mr. Fielde, \' -pefore you even came to Court for that first hearing, that Monday, where your attorney asked the judge to throw out 2 your confession? You talked to him, right? Nie A NO. - Q You talked to him during that hearing, didn't Pm A A little. Q S0 you €id not understand all of it; correct? A No. o Now, was the interpreter--he wasn't your friend, was he? A Bo. Q He was not someone that you were supposed to confide in; correct, like your attorney? - Yes. Q Ané you confessed and you pleé guilty because you were scared ané that is the only reason you pled guilty; is that true? A Yes. Yes. Q Now, the case in California, you did not pleac¢ “guilty to murder, did you? AK No. MR. EVANS: That's all, Judge. MR. NOVICK: No recross. THE COURT: Thank you. MR. EVANS: Your Honor, at this point the Gefendant's allegations are still that he was threatenec, possitly wit> force, ty the pelice. He doeen't remember the plea colloquy, whet was all said to him, but he renerbers that he pled guilty because he was scarec, anc under hie JOE TROIANO Crrcue Meece-ace C-acrire Core- TELEPHONE 374.1714 pha) 111 $ W 3rd Street / Suite 401 / Muem. Fionds 33136 = ah? belief, Mr. Fields didn't do all he thought he should have done for hin or he Gidn't have any confidence in him. Ke thought that if he didn't Plead guilty that he would get the electric chair and he said he plead guilty just to save his life. I Gon't think anything has come up that would rebut that, That's the point we stand on right now. MR. NOVICK: Are you resting your case? MR. EVANS: I'm resting my case. MR. NOVICK: May I call my first witness? THE COURT: Yes. MR. NOVICK: Harold Fields. THE CLERK: May I swear you in, Mr. Fields? Thereupon: EAROLD PIELDS was called as a witness and, having been first duly sworn, was examined and testifiec as follows: DIRECT EXAMINATION BY MR. NOVICK: re Would you state your name and occupation? A Harold Fields. I'r an attorney. ¢ Eow long heve you been ar. attorney? Just for the record, tell the Court your background. A I've been an attorney since March 20, 1973, JOE TROIANO Crric Reeoe-ee® Ceci. Coe TELEPHONE 372.1734 a fu 11S W 3rd Street / Suite 401 / Mia. Florida 33130 30 — when I was sworn into the New York Bar. Q Ané a majority of your practice has been over the course of those years criminal defense? A Yes, sir. Q You have done numerous first degree murder cases, Mr. Pields? A Yes. Q Were you the attorney, in fact, of record, for Mr. Urbano Torres? B Yes. Q In your preparation of this particular case, you took depositions; correct? A Yes. Q You did some traveling for which some deposi- tions took place and didn't take place, but to look into the background of your client? A Yes. Q And to see whether the State could prove the allegations in the indictment and sone of those aggravated factors that the State woulé use against your client at time of sentencing? A Yes. Q Did you have occasion during the time you represented your client to meet with him on more than one occasion? JOE TROIANO Cc c Rre- fc Cwey Co er ce TELEPHONE 374-1716 - 09 WS W 3rd Street / Suite 401 / Mam. Flonde 33130 31 Ls Yes. Q Did you indicate to hin the proof which you felt the State would be able to go forwaré with in this case, both as to the first degree murder and as to the sentencing phase, if it were to get that far? is Yes. Q Dié you indicate to your client, as a trained professional, what you thought the outcome in this case could potentially be? A Potentially yes. Q Did you indicate to him the orders in this-- did you indicate to him that there were some serious aggravating circumstances in this case which would miti- gate against him, as far as sentencing goes, anc that this wae really a potential death case? A There were two. MR. EVANS: At this time, I am goinc to object. Mr. Novick is testifying. MR. NOVICK: I will Go it in a non-leading fashion. I was trying to push a little bit. Q (By Mr. Novick) Did you file wotionse in this case? A Yes. Q Did you file etandard death motions in a Geath case asking for all kinde of rulings ty the Court on death 1OE TROIANO Orricia Reece-ce Creccis Cover if ] TELEPHONE 374-1716 Jit 111 S W 3rd Street / Suite 401 / Mam Blonds 33130 32 pee issues and asking for aggravating and mitigating ce i circumstances, and the Public Defender's office asked for those types of things in order for you to protect your 4 | elient in the eventuality the State was looking for that a type of punishment in a case? 6 | a I filed a number of motions that were appropriate ‘7 | @o a Geath case, yes. & Q Did you also file a motion to suppress the defendant's confession in this case? I A I believe I dic. VW Q Did that in fact get to hearing? 1. A Yes, ie é44. Q Did you meet with a client at that tine and 14 about that motion? I A Yes. Q Let me ask yor this: You don't speak Spanish, right? . a No. - 0 When you met him, you met him with or without “ a certified Court interpreter? A Well, every tire I met with him, it was with a certified Court interpreter. ¢ There wae a heerince on the motion to suppress, correct? A Yes, there wae. JOE TROIANO Orricvas Reeceere Cis > Cove- “>"> Ww Ae TELEFHONE 374-1714 111 S W 3rd Street Suite 401 / Mam. Florida 33130 SE 33 0 Ané the Judge rule¢? A Against me. me @ Then there was a plea offer.from the State at 4 | that point? A There had been a plea offer all along. There had been an original plea offer, I believe. a rey What happened to that? | . A Well, that plea offer went down the drain after you had determined that he had committed a homicide in Los Angeles and you were able to prove it. Q Then the pending plea offer wae to what? i A The plea offer? ‘icer?, Q The new pending plea offer, after I withdrew the second degree plea because of the aggravated circun- stances of the murder in Logs Angeles. Rh You seic you were going to ask for the death penalty, notwithstanding--notwithstancinge your previous plea offer. Q Okay. Now, do you remember us recessing that Monday night? h After the mction to Suppress? Q After the motion to suppress. - A Yes. r Q Do you remember having conversation with your JOE TROIANO WS W 3rd Street Suite 401 Miar Flonds 3313C la not???? Ve client in the jury room here in Judge Person's court, Tue#day morning, before and during the Court calendar? A Yes. Q Do you remember the plea dialogue? a Colloguy here in front of the Judge? Q Yes. Did Judge Person go through the standard set of required questions as prescribed by the Florida Rules of Criminal Procedure? a As I recall. You hear it so much that--- Q You might have left something out and the record would speak for itself? A The record would speak for itself. Q Did your client ever communicate to you on that day that you were forcing him to do something that he @Gid not want to do? A No. You know, he was upset. Q That he would have td plead quilty to this type of crime? A Yes. Q Did you ever threaten him? AK Tareate: him? kEow de you mean? Q You just wouldn't try this case or couldn't try this case? A No. I never told--- JOE TROIANO Ore ‘ Rereorwrce C ec > Cover TELEPHONE 374.1714 WS W 3rd Street Suite 40) Miam Blonds 33130 td han 35 6 rey That you woulé not give him a vicorous ¢efense if he @ecided not to accept the plea offer? A No. I never told him that. Qo Did you ever tell him that the State Attorney's office or myself, someone had a pipeline to the Judge and the Judge was going to @o "xX" if he was convicted? A No. I Gidn't tell him that either. Q None of that would be true, right, to your knowledge? A That the State Attorney has a pipeline to the Judge? Q Or this State Attorney or the State Attorney's office or anyone knew what the Juéce wae going to Go in this case? A No. I @on't think you have a pipeline to this Judge. Q Or any other Cucge. In fact, Go you remember whether there was ever. any conversation in front of this Judge about his thoughts prior to sentencing, prior to us going into the hearing ance this case pleading cut? KR tT believe that=--the receré will have te sree! for itself, but I believe the Cuccse hae indicated that this was a horrendous type crime and the fact that he hac flec guilty to ae crime in California certainly did: 't help the JOE TROIANO ‘ Riecerrce Cec TELEPHONE 374.1706 oie W117 S W Sid Street / Suite 20) / pram. Blonds 3313¢ 2 ——___—__ issue. I believe it wes whether or not he wes going to be able to get behind the crime in bringing ge circurstances-- since the crime wes only sggravateé assault, ané I got en indication it would be resolved egainst me. G Your client pled guilty tc aggravated ssseult where, in fact, someone 6ie4. This was @ plea taken in California. The 6tate was going to be able to introduce evidence thet there wes a Geeth there. You resolveé thet or the Court resolveé that in your wind against you? - Yes. ¢ If the recoré so reflects, your client wes able to tare the etané in the rotion to suppress ané voice his feelings on the matter? A I 6c not recall exactly what my client--exactly what he sai¢, but I believe I asked one auestion too many ané my cliert kind of closeé the G@oor on the motion tc suppress, as I recall. Q He gave an answer to sorething--- A Totally inappropriste. ie) Totally contrary to what was testified to to¢ay, but the recoré will reflect--- ,. I khrow 4t wee tctelly centrary to whet wee erié tocey. It was certeinly contrery to wry theory of éefernce. MP. NOVICI:: I Gon’t have any further cueetions. SE a ee eS 37 CROSS-ZXAMINATION BY MR. EVANS: 0 Mr. Fields, you Gon’t speak Spanish, €o you? A I understand some Spanish. I've had a number of years in college, but I don’t speak and understand it fluently, no. Q Dié you try to use a little Spanish, you know, in trying to communicate with Mr. Torres? A I don't think so. I pay have said sone things to him between--exactly between me an¢é hin, without the interpreter, but it was--it waes--it was not of substance. 0 Now, et the time of the plea colloquy he was upset, correct? bh Yes. 0 Did you know why he was upset? A No. Be @idr't want to go to jail for 25 years. 6 4@ he tell yor that or ¢€i¢ you sssume that? A Well, the night before--1I think you have to set it up eae little bit. The night before, after he haé testified, we went into the jury roor with the interpreter and I askec hir whst he wzar.tec to cc. o@ s2eic, °3 wert to pieac guilty.* He haé heare the evidence froz the witnese stand. He hed hearé Detective Perez, I believe, give @ Gescription of the horiciée an¢d I think that he--he hac JOE TROIANO felt at that time that the plea negotiations were in his best interest. 0 how, Giéd you ever tell hin, I can’t do anything for you? 7 Ho. 9 Are you eure? .s Yes. ey You could have seid it and forgotten about it? A Well, what do you mean, I can't do anythina for you? Can I win the case? It was my opinion that I couldn't win the case, ané, you know, I certainly could have tolé him that. Q Dic he tell you he was innocent? A Yes. 0 Now, he pled guilty to aggravated assault in California, correct? AK Yes. 0G Normally, aggravated assault, just pointing the weapon at someone, is a third degree felony? A Yes. 6 Basec on your investigation, did someone stay dr. California baseca on that 6ane case? A Yes. 0 Could you tell we the circumstances? A Circumstances, as best I car recall, was that JOE TROIANO a as another individual ané the victia had gotten in a fight ané apparently the other individual turneé to Mr. Torres ané Mr. Torres, at least accordine to the people in Cali- forniea, stabbed the man to Geath, okay? Apparently, for whatever reason, the police out there weren't able to get their witnesses together in time--in time. I believe one of the people who told on hip was a police informant and that was sorething that I hed figured out by myself, somethinc Mr. Novick knew and hadn't told me. I figureé it ovt, looking through the Court documents and through the police reports, ané he head disappeared. But it hadn't been iné@icated to re at the time thet we had gone to California that the police had--head founé him again-- Q And base¢ on that-- , --ané that person is available. Q --you went to California, correct? a Yes. Q Ané you talkeé to these witnesses that gave you the basis for--- A No. I 6ién't talk to the police informant. No. I telked to the police officer responsible for the case. 0 Were they wiliing to come to Florida to testify in this case if they hac to? JOE TROIANO Ve TELEPHONE 374-1714 V~ 40 A Yes. ¢ Diéd Mr. Torres, ir your opinion, seer to have Girinishedé capacity in any mental sense, based on your observations of hinz? A I don't think he had a real good education and, to tell you the truth, I don't believe that--Detective Pere: G4idn't trick him or promise him anything to make a confes- sion, or didn't. Q Did you have any physical proof? Did the State prove to your satisfaction that the watch in the property was the Cdeceased's watch? RK Well, they tried to. They tried to establish it and the objection wes that there wae ne one to say this was the man's watch, except a Gescription that somebody else had given of the watch. I believe the objection was sustained and the watch waen't useé ae a basis. ¢ Sc the watch Gidn'’t have ae serious--- A lio. Q The State was not able to establish, to ny satisfaction, or the Court's satisfaction that thie was in fact the decease@'sc wetch? }. Yes. 0 Mr. Fielée, do you feel that Mr. Torres pled guilty because you forcec him to pleaé guilty by telling hir that he would get the electric chair if he 4idn't plee? JOE TROIANO Ore Rrecer#e® Cme Co." 7 40 TELEPHONE 374-5714 111 S W Bre Street Suite 401 / them. Flonds 33130 41 guilty? A I'm not going to speculate on that. I believe Mr. Torres pled guilty because he beliewed it was in his best interest, as x 414. Q Do you believe the case--the State had a good enough case to get a conviction for first degree murder? A Yes, they 4id. MR. EVANS: SBothing further. MR. MOVICK: Nothing further from me. Thank you very much. THE CLERK: Raise your right hand, please. Thereupon: JOSE SOLAZANO was called as a witness ard, having been first duly sworn, was examined ané testified as follows: DIRECT EXAMINATION BY MR. NOVICK: Q Could you tell us your name and occupation? A Yes, sir. My full name is Jose Solagrano and my occupation is Official Court Interpreter for Dade County Courts. 0 Dig you have occasion to be brought in by the Court to the case of State of Florida versus Urbano Torres, this man who is--maybe you can't see him--this man's case right here, in this courtroom on Tuesday morning, October 4, JOE TROIANO Ore . Rirocetrce Ce * Cove +1 TELEPHONE 374.1714 111 S W 3rd Street Sute 401 Miem, Blonde 3313¢ 42 19837 A I have no unaidec recollection of that incident and I might adé the reason. We have so many cases every day. Q Do you remember, though, talking and translating + with Harold Fields, the gentleman who just came out ané asked you to come into the courtroom and aided him in discussing a case in this courtroom ané in that jury room with a particular defendant, though you may not remember the Gefendant that the case revolved around, the case where somebody's car was stolen and he was wrapped up and tied up in some sheets and there was some bowel movement wher he was killed, kand of--- A With a car? Q No. Where the guy was tied up with sheets. Fe had a bowel movement--does those set of facts--- A I recall somethino like that, but I believe that when I heard those details, it would not have been in the jury room. It might have been another--- Q Tell me who the translator was that day. A I may have had more than one intervention in the case. Q If the record of the plea colloquy, when it is provided to the Court, reflects that you were the translator that morninc, that woulén't surprise you, JOE TROIANO Orricie, Rewomtem Cimcuit Covmy TELEPHONE 374.1716 6 “Lie WS W 3rd Street / Suite 401 / Miam. Flornds 33130 | would it? A No, it wouldn't. Q Let me ask you this: Were you with Mr. Fields on that particular case, the one that you remember with the sheets ané the body secretions? o Yes. Qo Do you remember Giscussing with Mr. Fields or translating for him an atterpt at plea discussions? MR. EVANS: Your Honor, at this point, if he can't establish that this defendant--it's a moot question. THE COURT: We are going to have to try to do the best we can here. Let's see what he remembers, if anything. Q (By Mr. Novick) Do you remember having the plee discussions? A Not that case specifically. If the Court recoré shows it--but I have--- MR. NOVICK: I have a suggestion, Judge, at this time. The man does obviously have a lot of cases, @ lot of pleas in Court. If I could wait until we get the plea colloquy, let hir refres> his recollection and see whether or not he was the official translator, I will hold him off until that cores in. It might be easier that way. JOE TROIANO TELEPHONE 374-1714 V1 S W 3rd Street / Suite 401 / Miam Flonda 3313C as THE COURT: I think it would be fairer to ell | people involved if we just hold off on it. Also, we order this again today. That will be the third ané the fourth. MR. WOVICK: I have personally ordered it, not only in the courtroom, but from my office and I know I just can't imagine the plea from October not in the Court file yet. Maybe we ought to get a reset date ané I woulé be resting after Mr. Solazano's testimony, once we get a chance to review it. THE COURT: Was it--- MR. NOVICK: He is going to find I have a notation from the time--- THE COURT: Was the confession transcribed in this case? I don't remember. MR. NOVICK: Yes, it was. If the Court would like this as well to aid you, I will move that into evidence. THE COURT: I have a recollection of two cases. MR. NOVICK: I move that into evidence as State's Exhibit No. 2, the confession itself, and i will aiso white out Fr. Evans Sbeceuse he cic: *t have the main file. So we will have two copies, one for him to review and one for the Court to review, to refreeh the recollection, because you dic JOE TROIANO Orr a, Reeoesem Cece Core TELEPHONE 374.1714 . 44 111 S W 3rd Street Suite 40 Miam Flonda 33130 4s | look at it and review it. iz I'd like to leave this hearing until that time. Maybe we can--- THE COURT: He's not going anywhere. Put it over--give it at least two weeks. THE WITNESS: If there were any specific ques- tions, I might be able to answer. MR. NOVICK: It is not that long. Until you've had a chance to recollect that you were the person on the plea--- THE COURT: Okay. MR. NOVICK: Pick a date out. THE COURT: Yes. We can pick one--two weeks from now. The 21st would be so busy. Let's do it the Priday before. I really want it on so that those documents appear. Get me a copy of everything so that we can--I can read it. Then I'll have future hearings. 2/17. MR. EVANS: 2/17 report? MR. NOVICK: May I be excused? THE COURT: Yes, sir. Thank you. MR. EVANS: Thenk you. (Thereupon, the hearing was concluded.) JOE TROIANO Rreoer “3 CT 46 CERTIFICATE STATE OF FLORIDA ) COUNTY OF DADE ) I, the undersigned, do hereby certify that the fore- going 46 a true and correct record of proceedings had in the case of BState of Florida versus Urbano Torres, Case No. 84-4382 before the Honorable Ralph K. Person, Circuit Judge, at the time and place herein set forth. Dated in the City of Miami, County of Dade, State of Florida, this SUA day of December, 1984. Ot : —" Shorthahd Reporter JOE TROIANO TELEPHONE 374.1714 15 STATE OF FLORIDA, Plaintiff, ve. URBANO TORRES, Defendant. IN THE CIRCUIT COURT OF TRE ELEVENTH JUDICIAL CIRCUIT IK AND FOR DADE COUNTY, FLORIDA CRIMINAL DIVISION CASE WO. 83-4248 ) ) ) ) ) ) ) ) ) ) ) Thereupon, Metropolitan Justice Building 1351 Northwest 12th Street Miami, Florida 33125 March 16, 1984 Friday, 10:00 a.m, the above-entitled matter came on for hearing before the Honorable Ralph N. Person, Circuit Judge, pursuant to Notice. APPEARANCES: JANET RENO, JAY NOVICK, State Attorney, by Assistant State Attorney on behalf of the State. BENNETT E. BRUMMER, Public Defender, by JAMES EVANS, Assistant Public Defender on behalf of the Defendant. JOE TROIANC 17 sinha . ‘ TELE PHO THE COURT: All right, we are here ir the matter of Urbano Torres. MR. NOVICK: Judge, as we recessed the last time-- Jay Bovick. This case was on for hearing. We recessed for two other pieces of State's evidence to be produced for your review, and that is the entire transcript of the motion to suppress heard by you on October 3, 1983, which has not been transcribed and introduced into evidence as State's Exhibit No. 2; but I don't believe the Court has had an opportunity-- THE COURT: I have got a copy of that, I think, in my office. MR. NOVICK: You very well might, because I really don't know what's in the office and also to wait for a copy of the plea colloquy, which I did provide to the Court, which is State's Exhibit No. 3, which is now being received and with the receipt of those two pieces ef additional evidence to negate the defendant's clairs filed in his pro se motion for post-conviction relief. The State would rest its rebuttal of the defense's claim and unless Mr. Evans has some further evidence to produce, we could proceed either to argument or tc having the Court review that or have the Court reviev it--whatever the Court wants and Mr. Evans wants. MR. EVANS: I have already presented what I would JOE TROIANO tS TELEPHONE 374.1714 n1$ Ww 3 Stee Suite $03 Man &F i gee ’ like to present, and I would just have argument, THE COURT: All right. I‘m ready to hear argument then. I think I heave got a copy of this in the office. MR. NOVICK: I have tried, as these things have come up, to provide not only the original to the Clerk, but to give you & copy; and I think we have done 60 as things have come in. MR. EVANS: Your Honor, the defendant has testi- fied, and I am sure the Court remembers his testimony. Basically, his teatimony was that he has very little education. He is from Cuba. Fe doesn't have a high degree of understanding of Englieh, and the understanding that he has in Spanish is of a very limited nature. He suy# that he pled guilty, because he was told he would die in the electric chair. He felt that he 4ié not understand everything that was going on. He felt that he confessed, because he had no chance or no choice to go otherwise, because in his opinion, his lawyer wasn't doing anything for him in his estimatio- or to his underetanding; anc he felt that with hie lawyer not working for him, rather than go for the-- and possibly be killed fur something which he consi- ders he didn't do, he would rather plead guilty on thet JOE TROIANO basis. Now, the State has provided the Court with a copy of a statement that is--that was witnessed by a Cus Cueva (phonetic), which is approximately--well, it's not numbered, but it seems to be about 10 or 12 pages long: and even from this, your Honor, it's not clear that the defendant understood everything that was going on. You will note that the questions were basically leading. Por instance, on--I guess this is page two, it says, "I have not been threatened nor have they promised me anything. Nobody has given me a hard time nor have they promised me anything to make me sign the paper. I also want to explain to you, you know, that at this time, you are not under duress." Basically, this is the officer speaking saying all the things that he coulé have said or if he said it, you could say that this was a clearly knowing and intelligent waiver. His responses are, “Uh huh.” Ané then the next one is, "You know that you Gon't have to be here if you don't want to,” ané ther he says, "Bmmr,” but you want to clarify the probler, so there won't be any other probler. I woulé say basically that this vehicle that the State save is a trick that the police used to get JOE TROIANO Orricee, Mewowrce Cmcci Cover = TELEPHONE 374.1716 00 WIS W Bre Strecs Suse $02 , Mam Fionds 33130 1! si him to confess. They led him throughout all the-- understanding his answers, that he understood even on \ that same page. It says, “If you want to leave, you can leave. If you want to stay, you can stay,” and that's in ny questions. intel?’ | Then it's unintelliahle or whatever that is. It's not clear, your Honor. I would say Mr. Torres is maybe of limited intelligence. He is in @ new country with a new system. He felt alienated. He felt that he had to | Go what he thought to save his life, and he only made those statements and pled guilty, because he thought that if he didn't, he would surely die by electrocuticr 4 for something that he surely didn't do. That's basically my argument. TRE COURT: All right. MR. NOVICK: My argument in rebuttal is about three sentences, Judge. One, the argument that Mr. Zvans makes as to the ak. motion to suppress is not well founded in a Rule 3, Judge. That has been heard and ruled on, and that may ~ only be reviewed by a direct appeal from the Court's z ruling. ie There could have been a plea, for example, research- - ing the right to appeal that particular ruling if that JOE TROIANO Orricie, Atocerce cc * ¢cower r- TELEPHONE 374-5716 51 WS W Bre Strect Sute $02 / Miem Flonde 33130 was all the evidence the State had to introduce against him, but that's not reviewable by a Rule 3, ané I think the transcript of that hearing that you have in front of you will indicate to the Court and the Appeilate Courts that this defendant received a full, fair and complete hearing at the appropriate time on bis motion to suppress. His only other allegation in his pro se motion for post-conviction relief is that Mr. Fields coerced him into a plea. The Court heard the evidence from Mr. Fields. Can't weigh that egainst the facts in front of you. Your plea colloquy, you having observed that plea colloquy, you remembering the questions and your answers to the defendant, because during the course of this hearing, you recall some of the things that you said to him, the case came back to you, and some of your impressions as the trial judge of what your feelings were when this plea was entered as to the potential sentence here, and it's a very classic case of a plea of convience. The Court indicated some of the thinge that the Court would consider, and the jury would consider upo- sentencing, should there be a guilty verdict. Mr. Fields had alerted the defendant of that, ast JOE TROIANO ro Orric.a. Mewpoeree Cmcurr Coven } re TELEPHONE 376.1714 WIS W 3rd Stree’ Suite $02 / Miam Flonde 323136 — 7 to he had the obligation to do; ané very classically, the Gefendant felt, rather than risking the potential Geath penalty in this case, which the Court had indi- cated was a real possibility here for someone to have killed someone out in L.A. and come back here a short period of time being on probation and killing someone here locally, that instead of risking that, he took the classic way out and pled guilty to what the Court approved of, a fair plea in this particular case in return for not taking that risk. And there is no indication by testimony, really either by the defendant or by Mr. Pields or by the recoré in front of you that there was any coercion here. This wae really a person, a young man who was fricght- ened. I think everyone who comes in front of the Court in euch a situation, is going to be frightened. The question is did he do what he did intellicently, because he had a reason for it? I think the record is clear that he did it to save his life et that point. THE COURT: All right. MR. EVANS: Can I say something briefly? MR. NOVICK: I have no objections. MR. EVANS: I would ask the Court to consider the confession, because part of his Rule 3 motion was con- viction obtained by use of a coerced confession, anc JOE TROIANO r7 Orecra. MewoRtEe Creevis Cova VJ TELEPHONE 376.1714 WIS W Bre Stece Sieve $62 Miam Blewde 33130 I don't think that's padinnen to why he pled guilty. The fact thet he has this alleged confession ané¢ it's part of the--I would ask you to consider that as one of the circumstances under the totality of the circumstances. TEE COURT: All right. The Court doesn't need to read this page for page. I just wanted to make sure we had this hearing, ané the length of the hearing thet we had, I do have some recollection of that. Since I was provided at the suppression hearing, I don't think it's necessary for me to now reread all of this and state for the record that I have read it. It will become a part of the record in this matter along with our other documents that have been marked as evidence in this case, ané the Court at this time is prepared to rule on the defendant's Rule 3, and the Court's going to deny the relief that's requeste¢ at this tine. MR. MOVICK: I think the defendant needs to be advised, I think he has the right to appeal the denie) of your Rule 3 within 30 days of the entry of thet order and the public defender, because he is indigent, will be appointed to do that. MR. EVANS: Would you appoint us? JOE TROIANO rc $ Orricia. Mewoeres Cec. + Cover TELEPHONE 374-1714 11S W Bre Strec’ Sure 502 Mer FBiones 33130 THE COURT: I am going to appoint you and make sure Mr. Torres understands that I have denied his request, ané that you may have 30 Gays to appeal the ruling of this Court on the Genial of your motion. MR. EBVANS: Thank you, your Honor. MR. MOVICK: Thank you, your Honor. THE COURT: Do we have all of the appropriate documents marked for evidence from this hearing? MR. WOVICK: Yes, we do. TEE COURT: The transcript, the plea colloquy? MR. WOVICK: Whet we need to do, I think, though it might be a little bit more complete, Judge, is if we--since there were three statements, the Court has some good memory of the case, the Court re-alerted me to the fact there were three, and they should be--- THE COURT: Advice of rights form in Spanish and in English translation with ther . MR. NOVICK: They have not been made a part of the hearing on the Rule 3, Judge. They are part of the hearing on the motion to suppress, but if the Court would have no objection, so that the record is abso- lutely clear, including as evidence all three-- THE COURT: I feel they ought to be included, all documents that I had and considering I did have a copy of that. In fact, I have ther in front of me now, JOE TROIANO Cre cies Rrere-ee Cec. Cover sees TELEPHONE 374.1714 : YU 11 $ W 3c Sree’ Suite $062 Mam Bienes 33130 10 - 33330 qT oO 11 . CERTIFICATE STATE OF FLORIDA ) COUNTY OF DADE ) I, the undersigned, do hereby certify that the fore- going pages 1 through 10 are a true and correct recoré of proceedings had in the case of State of Florida versus Urbana Torres, Case No. 83-4248, before the Honorable Ralph NW. Person, Circuit Judge, at the time and place herein set forth. Dated in the City of Miami, County of Dade, State of Florida, this > day of April, 1984. ff A Cah Le Fazok t- CARLA DeLAUGRTER Shorthand Reporter 07 a JOE TROIANO Ore.c a. Rewoerca Cec. '* Cover TELEPHONE 374-1714 WS W 3rd Ste Sute 502 Mar Fionde 33132 { "§ IN THE DISTRICT COURT OF APPEAL OF FLORIDA TRIRD DISTRICT CASE NO. 84-793 URBANO TORRES, Appellant, vs. THE STATE OF FLORIDA, Appellee. APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR DADE COUNTY INITIAL BRIEF OF APPELLANT BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1351 Northwest 12th Street Miami, Florida 33125 (305) 545-3005 ELLIOT HB. SCHERKER Assistant Public Defender Counsel for Appellant Sy G* TABLE OF CONTRNTS PAGE TABLE OF ey tf ea. aes ee ee ee eee eee FC ee | THT ROOUCT IOs ccc Se eseee cece eS ereseeceesessecsececceesecesesececd STATEMENT OF THE ~ i : eee ee ee ee eee eee ee ee eT Te Te ee eee POINT ON DPPEAL a ccc eecees eee ceeeeeseeeesseessscessececenseseccesad STATEMENT OF THE -, Terre se ee ee ee ee ee ee ae ee ee ee a ee ee SUMMARY OF i. 6: eer Tee er eT eT eee ee ee ee eT TT TTT eT eee ARGUMENT THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF, WHERE THE EVIDENCE BEFORE THE COURT FAILED TO ESTABLISH THAT DEPENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS PRIVILEGE AGAINST SELF- INCRIMINATION AND HIS RIGHTS TO A TRIAL BY JURY, CONPRONTATION OF ADVERSE WITNESSES, AND COMPULSORY PROCESS, AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTIONS 9 AND 16 OF THE CONSTITUTION OF THE STATE OF FLORIDA, IN THE ENTRY OF KIS GUILTY PLEA TO THE CHARGES IN THIS CASE............-11 oe ee eee ee ee TA CCT ERTS CTC ETTT TET. & CERTIFICATE OF SERVICE.....ccces COCERCHEERSRERGC EE KROSEGAOEHROCOED nin TABLE OF CITATIONS BOYD V. DUTTON > Use \ Fa) cceeeeeeeseceeeeeeesecesesesecseescececncesstS BOYKIN V. ALABAMA . . SPETTTTTTLELELTT TTT TTT Terr 13, 14, is, 17 BRADY V. UNITED STATES >. . COSOSSKKSSESEOHSESSE SESE SESSEEOEELESESESEEaAs BROOKRARD V. JANIS . . COOHHESSSSSESSESSHHSHSEEESSESESEESESEOOEEESESEAS CARNLEY V. COCHRAN . - P60 465660005608600650666690666606000600660 R88 JOHNSON V. ZERBST 304 U.S. 458 TEBSO) 64406800008 McMANN V. RICHARDSON 397 U.S. 759 Ti tateesnes MASON V. STATE 176 So.2d 76 (Fla. 1965)....... eee eee eee eeeeeeereee ee eee eeeeee 15 MIKENAS V. STATE 460 So.2a 359 (Fla. ROSS) ow cncccacese COSC HOKE EOREOEeeeanecesecd’a NOVA V. STATE 439 So.2d 255 (Fla. 34 DCA ROBO) KONO 4-06 0566 654060006000068Rs is STATE V. BREST 421 So.2d 638 (Fla. 3d DCA 1982).... see ee eee eee eee ee ee eee eee 16 STATE V. STACEY No. 66,447 (Fla. Oct. 17, ROOD D AGA WS OK O044 40656 0004800000000088 WARD V. STATE 433 So.2d ages (Fla. 3d DCA SOON K446646406065440646000040600682 WILLIAMS V. STATE 316 So.2d 267 (Fla. LELIELOEPTPERETELOLTE TELE TELE Ce 14, is, 17 -ii- 60 OTRER AUTRORITIES CONSTITUTION OF THE UNITED STATES Fifth, Sixth, and Pourteenth Amendments..........eeeee-ll, 12 CONSTITUTION OF THE STATE OF FPLORIDA Article I. Sections 9 and 080566650664 660009606666666006c008 PLORIDA RULES OF CRIMINAL PROCEDURE Rule 3.172(c) (iii), CEU) cccccccccccescesccccececececechte 13 -iii- — ( IN THE DISTRICT COURT OF APPEAL OF ri ORIDA THIRD DISTRICT CASE NO. 8684-793 URBANO TORRES, Appellant, vs. THE STATE OF FLORIDA, Appellee. APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR DADE COUNTY INITIAL BRIEF OF APPELLANT INTRODUCTION The appellant, Urbano Torres, was the defendant in the trial court and the appellee, the State of Florida, was the prosecution. In this brief, the appellant will be referred to as Gefendant and the appellee as the state. The symbol "R" will be utilized to designate the record on appeal, the symbol "Tr" the transcript of proceedings included in the record, and the symbol "S.R." the supplemental record on appeal. All emphasis is supplieé unless the contrary is indicated. G td STATEMENT OF TRE CASE An indictment charging Gefendant with first-degree murder ané robbery was filed on March 10, 1983 (R. 1+2A). On October 4, 1983, Gefendant entered a guilty plea to the charges, and the trial court entered judgment and imposed concurrent terms of life ané 15 years of imprisonment (R. 43-47). Defendant filed a motion for post-conviction relief on November 8, 1983 (R. 117-23). The trial court conducted an evidentiary hearing on Pebruary 6, 1984 (R. 117-18; S.R. 1-45). An order denying the motion was entered on March 16, 1984 (R. 249). Notice of appeal was filed on April 5, 1984 (R. 255). POINT ON APPEAL WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF, WHERE TRE EVIDENCE BEFORE THE COURT FAILED TO ESTABLISH THAT DEFENDANT RAD KNOWINGLY AND VOLUNTARILY WAIVED RIS PRIVILEGE AGAINST SELF- INCRIMINATION AND HIS RIGHTS TO A TRIAL BY JURY, CONFRONTATION OF ADVERSE WITNESSES, AND COMPULSORY PROCESS, AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE 1, SECTIONS 9 AND 16 OF TRE CONSTITUTION OF THE STATE OF FLORIDA, IN THE ENTRY OF HIS GUILTY PLEA TO THE CHARGES IN THIS CASE. STATEMENT OF TRE FACTS Defendant was arrested on February 20, 1983, on charges of first-degree murder and robbery (R. 3). The Public Defender was appointed to represent defendant at a first-appearance hearing on Pebruary 21, 1983 (R. 4). A grand jury indictment charging @efendant with first-degree murder and robbery was filed on March =2 The court stated no findings of fact or law in denying the motion (S.R. 8). Its written order states °the allegations contained [in the motion] do not constitute legal grounds for Granting a [nJew [t)rial ...." (R. 249). -9- SUMMARY OF ARGUMENT Both the United States Supreme Court and the Supreme Court of Florida expressly have held that a defendant must be advised of his privilege against self-incrimination and rights to a jury trial, to compulsory process, and to confront adverse witnesses, and must intelligently waive those rights prior to the entry of a guilty plea. The trial judge in this case failed to advise defendant adequately or to secure personal waivers of the rights which defendant abandoned by entering the plea. Waivers of constitutional rights may not be presumed from a silent record, but rather must be demonstrated to be intentional relinquishments of known rights or privileges. The record of the plea proceedings in this case fails to establish valid waivers under this standard, and the testimony educed at the evidentiary hearing fails to remedy this deficiency. Defendant's guilty plea accordingly is constitutionally invalid. -10- ARGUMENT © TRE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF, WHERE THE EVIDENCE BEFORE THRE COURT FAILED TO ESTABLISH THAT DEFENDANT HAD KNOWINGLY AND VCLUNTARILY WAIVED HIS PRIVILEGE AGAINST SELF- INCRIMINATION AND HIS RIGHTS TO A TRIAL BY JURY, CONFRONTATION OF ADVERSE WITNESSES, AND COMPULSORY PROCESS, AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTIONS 9 AND 16 OF THE CONSTITUTION OF TRE STATE OF FLORIDA, IN THE ENTRY OF HIS GUILTY PLEA TO THE CHARGES IN THIS CASE. A guilty plea “is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial -- a waiver of his right to trial before a jury or judge.” Brady v. United States, 397 U.S. 742, 748 (1970). It is therefore fundamental that a guilty plea must be entered knowingly and intelligently, with full awareness of the consequences thereof. E.g., McMann v. Richardson, 397 U.S. 759, 766 (1970); Mikenas v. State, 460 So.2d 359, 361 (Fla. 1984); Ward v. State, 433 So.2d 1221, 1223 (Fla. 3d DCA 1983). The question presented in the present case is whether the record -- that is, the plea colloquy and the evidence presented to the trial court at the evidentiary hearing -- establish a knowing and intelligent guilty plea by defendant. ® The specific claim in defendant's pro se motion to which this argument is directed avers that his conviction had been obtained “py [a] plea of guilty which was not made voluntarily with the understanding of the consequences of the plea." (R. 121). While the facts asserted in support of that claim are focused on defendant's fear of a death sentence, (R. 121), a fact which, standing alone, will not invalidate an otherwise-valid guilty lea, e.g., Brady v. United States, 397 U.S. at 755, the required iberal reading of the motion, e.g., State v. Stacey, No. 66,447 (Cont. ) -jl- Boykin v. Alabama, 395 U.S. 238 (1969), established the reguisites for the waiver of constitutionally-guaranteed rights which is inherent in a guilty plea: Several constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights from a silent record. What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence . Id. at 243-44 (footnote and citations omitted). This requirement is codified in Rule 3.172(c) of the Plorida Rules of Criminal Procedure, which states in pertinent part: (c) . . - [T]he trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he understands the following: * ® * (iii) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to compel attendance of witnesses on his behalf, the right to confront and cross- examine witnesses against him, and the right not to be compelled to incriminate. himself. (Fla. Oct. 17, 1985); Nova v. State, 439 So.24d 255, 259 (Fla. 34 DCA 1983), entitled defendant to litigate the constitutional validity of the plea. -l]2- e ‘@ e (v) That if he pleads guilty .. . there will not be a further trial of any kind, 60 that by pleading guilty ... he waives the right to a trial.... Fla.R.Crim.P. 3.172(c) (iii), (iv). Discussing Boykin and the predecessor to Rule 3.172 in Williams v. State, 316 So.2d 267 (Pla. 1975), the Supreme Court of Florida held that the following are the “three essential requirements” of a valid guilty plea: °(1) the plea must be voluntary; (2) the defendant must understand the nature of the charges and the consequences of his plea; and (3) there must be factual basis for the plea." Id. at 271. In analyzing the second component, the court stated: [The accused] must also know that entry of a guilty plea constitutes a waiver of certain pirat fat fs rights, specifically his right to remain silent, have a jury trial, have process to obtain witnesses on his behalf, and confront witmesses who are his accusers. Ibid (citation omitted). Waivers of these fundamental rights must be by the accused, and cannot be waived by counsel in his or her stead. See, e.g., Brookhard v. Janis, 384 U.S. 1, 7-8 (1966). The colloquy in this case is egregiously insufficient under these standards, and is not saved by the evidence presented to the trial court at the evidentiary hearing. The record of the plea proceedings shows that defendant spoke on only three occasions: first, to be sworn, second, to state his name, age, and say “Yes" when asked if he was “aware of the charges” (R. 199-200), and on a third occasion, which was the only time during -13- eit och - ( ( . the entire course of the hearing when the court ever touched upon the requirements of Boykin and Williams. Prior to this inguiry, the court had advised defendant of the terms of the negotiated plea, and had twice asked defendant if he was electing to enter a guilty plea; defendant failed to answer, and a brief recess was taken for counsel to consult with Sefendant (R. 200). After this recess, the following transpired: The Court: Mr. Torres, there are certain rights that you are giving up by entering this lea. You are givin up the te Ae ne #. @ trial by jury. The r ri ht to e tr the _ puck and you are also givin "up the T Ight to have er East Bppeared. Th at is to appe sppesl the — udgment and sentence of the Court if we were to, but which we are not having a trial. You are stipulating to a prima facie case of guilt here and need -- Mr. Novick: I would ask the Court to [reply) on what we heard yesterday. The Court: I think we did hear during the suppression, no objection utilates [sic] those factors; [for) the purpose of finding a prima facie case of guilt. The Court should further point out that 1 was made at least aware that there were at least, even if the lawyers differ, as to how they would be weighed in terms of death. What the State considered to be give good aggravating -- one of which is involvement in the other similar type of case in the past. - « « But there was a death involved; was there not. Mr. Novick: Correct. Wasn't similar. In fact there was in Los Angeles. (R. 200-01). Immediately after this statement was made by the prosecutor, defendant spoke for the third and last time in the proceedings, as follows: The Court: Mr. Torres, under the circumstances, is that what you are going to rai The Defendant: Yes. (R. 201-02). The court then announced its judgment and sentence -})4@- (R. 202). Thus, the court utterly failed to advise defendant, as required by Boykin, Williams, and Rule 3.712, of his privilege against self-incrimination, and his rights of confrontation and to compulsory process. But more importantly, the court failed to secure any waiver of any of the rights which the guilty plea abandoned by defendant himself; indeed, defendant was never even asked if he wished to plead guilty or was in fact doing so. The only occasion on which these matters arose, as detailed above, was when the court briefly touched on defendant's right to a jury trial and to an appeal, but that was followed by a discussion of the factual basis of the plea and the state's intention to seek Geath, and the court's ultimate question of °is this what you are going to do* addressed nothing in particular and was certainly not the specific inguiry mandated by Boykin and Williams. The record of the plea proceeding utterly fails to prove an effective waiver of any rights under the controlling definition of a valid waiver of constitutional rights: *"{[Clourts indulge in every reasonable presumption against waiver” of fundamental constitutional rights and... *éo not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinguishment of a known right or privilege. ... Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (footnotes omitted); accord, Boyd v. Dutton, 405 U.S. 1, 2-3 (1972); Carniley v. Cochran, 369 U.S. 506, 514-15 (1962); Mason v. State, 176 So.2¢ 76, 78 (Fla. 1965); Nova v. State, 439 So.2d 255, 262 (Fla. 3d DCA 1963). This standard was adopted in Boykin as the governing -15- me ‘ Vv 4 rule for a waiver of constitutiona!] rights in guilty-plea proceedings, 395 U.S. at 242, and the incomplete advice by the trial court, in combination with its failure to secure fror @efendant any meaningful waiver, establish the insufficiency of the colloguy and the invalidity of the plea. Nor can the record of the evidentiary hearing be relied upon to cure these deficiencies; to the contrary, the testimony at that hearing simply re-affirms them. Counsel for defendant dia not recall the colloguy (S.R. 34), and defendant's testimony with regard to the colloquy is a fairly accurate depiction of the court's inquiries and statements (S.R. 24-26).7? The record of the hearing thus provides no support for a finding that defendant intelligently waived his privilege against self-incrimination and rights to a jury trial, compulsory process, and to confront adverse witnesses, at the time of the plea. Cf. State v. Brest, 421 So.2d 638 (Fla. 3d DCA 1982) (defendant's disavowal of plea at post-conviction hearing as product of confusion and fear legally insufficient to undo plea entered after thorough and constitutionally-sufficient inquiry by court). 7 Defendant initially stated that he had only spoken during the plea proceedings when placed under oath, but thereafter acknowledged that he had given his name and other identifying information (S.R. 24-25). However, under questioning by the prosecutor on cross-examination, defendant agreed that he had answered questions which had never been asked, e.g., regarding his mental state, and given answers which he had, in fact, never given at the proceeding, €.9., agreeing that he desired to pleas guilty (S.R. 25-26). Defendant was never asked if he had known of the rights which his guilty plea had waived; the prosecutor relied upon the transcript of the plea proceeding to argue to the court that the colloguy had been constitutionally sufficient (Tr. 6). -16- wmerny ee A guilty plea “is an extremely important step in the criminal process ané@ should not be hurried or treated summarily.” Williams v. State, 316 So.2d at 271 (footnote omitted). It was "error, plain on the face of the record, for the trial judge to accept [defendant's) guilty plea without an affirmative showing that it was intelligent and voluntary.” Boykin v. Alabama, 395 U.S. at 242. CONCLUSION® Based upon the foregoing, defendant requests this Court to reverse the final order of the court below, and to remand this cause with directions to grant defendant's motion for post- conviction relief, vacate the judgment and sentence in this cause, and afford defendant an opportunity to plead anew to the charges against him. Respectfully submitted, BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1351 Northwest 12th Street Miami, Florida 33125 (305) 545-3005 BY: 4 LLIOT KR. SCHERKER Aberetant Public Defender “i14-<- s} € 2) CERTIFICATE OF SERVICE I REREBY CERTIFY that @ true and correct copy of the foregoing was forwarded by mail to the Office of the Attorney General, JIM SMITH, 401 N.W. Second Avenue, Suite 820, Miami, Florida 33128 this 59,, day of October, 1985. LLIOT H. SCHERKER A ant Public Defender -le- be ree) IX THE DISTFICT COVRT OF APPLE: OF FLORIDE THIRD DIJSTKICI CASE NO. 84-793 URBANO TORRES, Appellant, THE STATE OF FLORIDA, Appellee. a a 2 AN APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA CRIMINAL DIVISION See@+re*zae*+ eet aeeeeneengeeeeneanrenrtnk eee Bee 2? t& 2 BRIEF OF APPELLEE JIM SMITTH Attorney General Tallahassee, Florida RICHARD E. DORAN Assistant Attorney General Ruth Bryan Owen Rohde Building Florida Regione] Service Center 401 N.W. 2nd Avenue, Suite E:¢ Miami, Florida 33128 (305) 377-5441 TAPLE OF CONTENTS TABLE OF CITATIONS Ee ee ee ee ee ee oe oe oe a a a oe a | INTRODUCTION Fe ee a ee ee ee eo a a POINT ON APPEAL Ee eo eS ee ee ee ee ee i er oe a SUMMARY OF ARGUMENT [Seer ere ere ee ae ea eeeseeeneveesene ARGUMENT Fe Te ee ae ee a we ee a oe a er 2 2 CONCLUSION CERTIFICATE OF SERVICE an) TAPIY OF CITATIONS Allen v. State, 463 So.2d 361 (Fla. lst DCA 1985) Eisaman v. State, 440 So.2d 470 (Fle. 5th DCA 1983) Kennedy v. Stste, So.2d (Fla. 2nd DCA case no. 84-2739, July 19, 1985)[10 F.L.W. 1769) Martinez v. State, 417 So.2d 770 (Fle. 2nd DCA 1982) Mikenas v. State, 460 So.2d 359 (Fla. 1984) Williams v. State, 316 So.2d 267 (1975) OTHER AUTHORITIES Fith Amendment, United States Constitution Sixth Amendment, United States Constitution Fourteenth Amendment, United States Constitution .. Section 9, Article 1, Florida Constitution Section 16, Article 1, Florida Constitution Rule 3.170(J), Fla.R.Crimn.P. Rule 3.172, Fla.R.Cric.P. Rule 3.172(i), Fla.R.Crim.P. ii ee ee eww wwe wees Aaa een we ee a tk ee oe ee at fo ge eo wy LAAs ee eee ee a eS ay oe oe ee ee ee el a et ie ae eg RES 2 P2886 6 OOS 0 © See PACE ts 2 IKTRODUCTION The Appellant, Urbano Torres, was the defendant in the trial court and the Appellee, the State of Florids, was the prosecution. In this brief, the Defendant will be referred to as Appellant sand the State as the Appellee. The symbo) "R'' will be utilized to designate the record on eppeal and the symbol] "S.R." the supplemental record of the February 6, 1984 hearing. All emphasis is supplied unless the contrary is indicated. POINT OX APPEA! WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF, WHERE THE EVIDENCE BEFORE THE COURT FAILED TO ESTABLISK THAT DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED H1S PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHTS TO A TRIAL BY JURY, CONFRON- TATION OF ADVERSE WITNESSES, AND COMPULSORY PROCESS, AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE CON- STITUTION OF THE UNITED STATES AND ARTICLE 1, SECTIONS 9 AND 16 OF THE CONSTITUTION OF THE STATE OF FLORIDA, IN THE ENTRY OF H1S GUILTY PLEA TO THE CHARGES IN THIS CASE. SUMMARY OF ARCIMENT Appellant relies upon Rule 3.172, Fla.R.Crim.P. (1977) and various United States Supreme Court decisions in con- tending his plea of guilty to crimes of first degree murder and robbery must be set aside due to an inadequate plea colloquy. This contention does not justify reversal because Rule 3.172(i), supra , requires a showing of prejudice to render the plea void. Appellant fails to argue that he was prejudiced and the record provides ample evidence that Appellant was not prejudiced. Allen v. State, 463 So.2d 36] (Fla. lst DCA 1985); Martinez v. State, 417 So.2d 770 (Fla. 2nd DCA 1982). GC at ATCIMENT THE TRIAL COURT'S DENIAL OF A MOTION TO VACATE THE APPELLANT'S PLEA OF GUILTY SHOULD BE AFFIRMED WHERE THE APPELLANT FAILED TO ARGUE OR ESTABLISH PREJUDICE AS REQUIRED BY THE RULES OF CRIMINAL PROCEDURE AND THE UNITED STATES SUPREME COURT. Rule 3.172, Fla.R.Crim.P. (1977) expanded former Rule 3.170(J), codified the Florida Supreme Court decision, Williams v. State, 316 So.2d 267 (1975) and thereby incorpo- rated the necessary factors to satisfy federal constitutional standards on guilty pleas. Mikenas v. State, 460 So.2d 359, 361 (Fla. 1984). In applying this standard to the case sub judice it can be said the Appellant has described the exchange between the trial court, defendant and defense counsel in a fairly accurate manner. However, Appellant's suggestion that a certain inference be made in his favor contradicts the wel] established rules of appellate procedure on argument of such points. This contention regards Appel- lant's observation that no plea of guilty was ever entered by him and that his response of "yes" to the trial court's inquiry "Mr. Torres, under the circumstances, is that what are you going to do?", failed to relate to any particular matter. This plainly ignores the qualifying phrase "... under the circumstances ...'', andthe detailed recitation \ « \ of rclevart corsicerations for the Appellant's corsideratior made by the trial] court moment's before. (R. 200-02). Appellee contends that the trie] court's plea colloquy supports a ruling that the plea was entered volunterily and with en understanding of the significance of the terms and conditions. Appellant's motions to vacate concedes the facts that he knew the nature of the charge and the penalty range at the time of the plea. (R. 121). The record reflects Appellanthad alawyer (appointed) who had handled every aspect of the case and attended each stage of proceedings with Appellant. (R. 111-16 and the record on appeal in general) (supplemental transcript of February 6, 1984 hearing, P. 29-36). Lastly, the record reflects the trial court told Appellant his plea would waive the right to a trial, by jury or judge, and the right to appeal. (R. 200). The testimony of Defense counsel, Mr. Fields at the February 6th hearing indicates the Appellant was aware of the terms of the plea - life imprisonment as opposed to death - prior to the entry of plea of guilty the following day. (S.R. 37-38). Lastly, the testimony of the various police witnesses regarding seized evidence and Appellant's confession presented during hearings before the same judge on three suppression motions (R. 9-12, 126-248) established an overwhelming case of guilty. This testimony was what “J (, t the prosecutor requested, withovt objection, to rely upon to prove e primes facie case of guilt. (R. 200). Tran- scripts of those hearings were introduced on this point during the hearing on the motion to vacate (R. 126-248) and the trial court noted hisrecollection of those hearings on the record. (S.R. 44). This process satisfies the minimum due process standards now at issue. Eisaman v. State, 440 So.2d 470, 472 (Fla. Sth DCA 1983). Against this array of information the Appellant makes his constitutional] claims. However, nowhere in the record or his appellate brief does Appellant address the issue of prejudice as required by Rule 3.172(i): Failure to follow any of the procedures in this rule shal] not render a plea void absent a showing of prejudice. Accordingly his complaint is meritless. Martinez v. State, 417 So.2d 770, nt. 1 (Fla. 2nd DCA 1982); Kennedy v. State, __ ‘ So.2d ___s (Filla. 2nd DCA case no. 84-2739, July 19, 1985)[10 F.L.W. 1769); Allen v. State, 463 So.2d 351, 362-63 (Fla. lst DCA 1985). Allen provides a footnote which lays this issve to rest: Rule 3.172, Florida Rules of Criminal procedure, is analogous to Federal Rule H F0) of Cricina) Procedure 1]. Williers ea ee ae a re | Pos ee There have been many federa) court decisions dealing with challenges to the validity of convictions where the requirements of rule 1] have not been met. These decisions almost uniformally hold that a showing of failure to comply with the role is insufficient to void a conviction; there must also be a showing of preju- dice to the defendant. In United States v. Timmreck, 441 U.S. 780, 99 S.ct. 2085, 60 L.Ed.2d 634 (1979), the defendant collaterally attacked his conviction on the ground that the trial judge did mot properly conm- ply with the formal requirements of rule ll in that the court did no advise him of the application of =) special parole term. The court defied relief to the defendant, noting that he “does not argue that he was actu- ally unaware of the special] parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty." Id. at 784, 99 S.Ct, st 2087. The Court held that “collateral relief is not available when el] that is shown is e failure to comply with the formal] requirements of the Rule." Id. at 765, 99 S.Ct. at 2088. (case citations oritted). Id. at 463. The Timmreck decision has applicability in this case. CANTLUSTON Based upon the above-cited legs] authorities Appellee requests this Honorable Court affirm the order denying the motion to vacate guilty ples. Respectfully submitted, JIM SMITER Attorney General \ ‘ ' ; ) oe s- : A Nat — og a hare RICHARD E. DORAN Assistant Attorney Geners] Department of Legal Affairs 401 N.W. 2nd Avenue (Suite 820) Miami, Florida 33128 (305) 377-544) CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing BRIEF OF APPELLEE was furnished by mail to ELLIOT H. SCHERKER, Assistant Public Defender, 135] N.W. 12th Street, Miami, Florida 33125, on this 19th day of December, 1985. . ‘ ae ve \ Pee