#### Albert LAWS, Appellant, v. STATE of Florida, Appellee.

No. 2520.

District Court of Appeal of Florida, Fourth District.

May 22, 1970.

Louis R. Bowen, Jr., Public Defender, and Edward G. Helvenston, Asst. Public Defender, Orlando, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and James M. Adams, Asst. Atty. Gen., West Palm Beach, for appellee.

CROSS, Chief Judge.

Appellant-defendant, Albert Laws, appeals a final judgment and sentence for the crime of manslaughter entered upon a *755plea of guilty by the defendant. We reverse.

The defendant, Albert Laws, was charged with having committed second degree murder in violation of § 782.04, Florida Statutes 1953, F.S.A. He was represented by the public defender, and at arraignment entered a plea of not guilty. Trial was held before a jury. After the state rested its case, the defendant testified in his own behalf, then rested, and requested of the court permission to withdraw his former plea of not guilty and to enter a plea of guilty to manslaughter, a lesser included offense, at which time the following proceedings took place:

> “THE COURT: Mr. Hitt, I understand you have a motion ?

> “MR. HITT: Yes, Your Honor; at this time the defendant would like to change his plea as previously entered of not guilty to the offense charged in the information, to a plea of guilty to the lesser included offense of manslaughter. I understand that this is acceptable to the State.

> “THE COURT: Mr. Lenninger?

> “MR. LENNINGER: Yes, sir; this is acceptable to the State.

> “THE COURT; Bring the defendant forward.

> (WHEREUPON, DEFENDANT AND RESPECTIVE COUNSEL APPROACHED THE BENCH)

> “THE COURT: Have you explained to him the effect of this plea, Mr. Hitt?

> “MR. HITT: Yes, sir.

> “THE COURT: This plea being acceptable to the State, the Court accepts the plea of guilty to manslaughter and the defendant is adjudged to be guilty of manslaughter as included within the charge of second degree murder. Information Number 68-383, and will be fingerprinted pursuant to the Statute, Mr. Simmers.

> (WHEREUPON, MR. SIMMERS, THE BAILIFF, CAUSED TO BE PLACED UPON THE DOCUMENT OF THE JUDGMENT THE FINGERPRINTS OF THE DEFENDANT)

> “THE COURT: Having been adjudged to be guilty of the crime as included in the charge of the information, defendant is remanded to the custody of the Division of Corrections for a period of five years with credit for time spent in the Orange County Jail since March 20th, is that what the record shows ?

> "THE BAILIFF: Yes, Your Honor.

> “THE COURT: All right. You may take the defendant out and then bring back the Jury, please.

> (WHEREUPON, DEFENDANT WAS ESCORTED FROM THE COURT AND SUBSEQUENTLY THE JURY WAS RETURNED TO THE COURTROOM AT 5:52 P.M.)

> “THE COURT: Now, Ladies and Gentlemen of the Jury, the trial has come to a rather unexpected conclusion. The defendant pled guilty to the crime of manslaughter which is included within the charge of second degree murder and which was acceptable to the State. He has been sentenced to the Florida Division of Corrections for a period of five years and this will conclude your duties in this Division and you can get on home to supper and back in Division ‘B’ at ten o’clock tomorrow morning.

> (WHEREUPON, THE JURY LEFT THE COURTROOM AT 5:53 P.M.)

> “THE COURT: Court will be in recess subject to call.

> *756(WHEREUPON, PROCEEDINGS IN SAID CAUSE CONCLUDED.)”

It is from this judgment and sentencing that defendant now appeals.

The defendant raises a sole issue on appeal, asserting that the lower court erred in accepting defendant’s plea of guilty without first determining for the record that the plea was made voluntarily and understandingly.

Rule 1.170(a) Cr.P.R., 33 F.S.A. effective after midnight December 31, 1967, reads as follows:

> *“(a) Type of Pleas; Court’s Discretion in Accepting.*A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty or nolo contendere, *and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.”*(Emphasis added.)

The plea in the instant case was accepted by the court without questioning, cautioning or saying anything to the defendant or in any way asking the defendant if he assented to the plea. The only inquiry made by the court was to defendant’s counsel, saying, “Have you explained to him the effect of this plea, Mr. Hitt?’1-

 The guiding rules are that a plea of guilty is but a confession in open court, and like a confession out of court, it should be received with caution. It should never be received unless it is freely and voluntarily made. Rule 1.170(a) Cr.P.R., is stated in mandatory language, and the court is not relieved of the duty which, the rule imposes solely because the accused, as here, is represented by counsel.

 We glean from the record that there was no inquiry whatever as to whether the plea was voluntary. A defendant may understand the effect of this plea or understand the nature of the charge to which he is pleading guilty without such plea being voluntary. We do not mean to say that a trial court must in every case follow a particular ritual in order to comply with Rule 1.170(a). A brief discussion with the defendant regarding the nature of the charges may normally be the simplest and most direct means of ascertaining the state of his knowledge, or there may be other circumstances from which it is evident that the defendant has the requisite understanding. See Michener v. United States, 8 Cir.1950, 181 F.2d 911; United States v. Denniston, 2 Cir.1937, 89 F.2d 696. Whatever the means employed, a fair compliance with the rule would ensure that the defendant has the knowledge and understanding essential to a valid plea. See also United States v. Diggs, 6 Cir.1962, 304 F.2d 929, and cases cited therein; Domenica v. United States, 1 Cir.1961, 292 F.2d 483; Julian v. United States, 6 Cir.1956, 236 F.2d 155.

In the instant case, the transcript does not show any discussion with or inquiry of the defendant by the judge. Our conclusion is that what appears in the transcript is not sufficient to show that defendant’s plea of guilty was voluntary with understanding of the nature of the charge.

For the foregoing reasons, the judgment and sentence of the trial court is reversed, and the cause is remanded for new trial.

Reversed and remanded.

McCAIN, J., concurs.

WALDEN, J., dissents, with opinion.

1

. This case was tried prior to the issuance of the opinion in the case of Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, which holding we do not understand to be retroactive. Cognizance is taken of the contrary position reflected in the majority opinion of that case. Inasmuch as it is not. a binding precedence in this instance, it is believed not inappropriate to record this writer’s agreement with the opinions therein of Mr. Justice Harlan and Mr. Justice Black. In the cases dealing with this area of the law, all such cases, with the exception of the Boykin case, supra, reflect an allegation and showing of prejudice. For instance, in Wade v. Wainwright, 5 Cir. 1969, 420 F.2d 898, there was a petition for habeas corpus in the Federal Court system. It was affirmatively alleged and shown that the defendant was never informed as concerns the maximum sentence. Thus, this writer is of the opinion that this dissent accords with the Wade v. Wainwright case.

WALDEN, Judge

(dissenting).

This appeal projects a clear example of harmless error and to reverse is to ignore and violate the mandate found in Section 924.33, F.S.1967, F.S.A., it being:

> “When judgment not to be reversed or modified. — No judgment shall be reversed unless the appellate court after an examination of all the appeal papers is of the opinion that error was committed *757which injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.”

Defendant, during the progress of the trial, changed his plea to guilty of a lesser included offense. On this straight appeal he presents a single point:

> “The lower court erred in accepting defendant’s plea of guilty without first determining, for the record, that the plea was made voluntarily and understanding-3y. This error requires that judgment of conviction and sentence be set aside.”

The argument centers on the adequacy of the questioning procedure employed by the trial judge at the time the guilty plea was accepted. His position is that, if the questioning be deemed inadequate, it absolutely follows as a matter of law ipso facto that his plea was not voluntarily and understandably made. The record does not reveal any allegation, hint, suggestion, fact or showing whatever that defendant’s plea was involuntary and not understandably made. To the contrary, it affirmatively appears from the record that the plea was voluntary and was made with understanding. This is revealed in a motion for mitigation filed by defendant wherein he asks leniency and states in his own handwriting, “I, Albert Laws, realize and voluntarily entered a plea of guilty.”

So there may be no misunderstanding, I would reach a different result if the defendant showed that his plea was not properly made or if prejudice to him was reflected in the record.

It is basic, of course, that the trial court should not accept a plea without determining if same is voluntarily and understandably made, Rule 1.170(a), Cr.P.R. However, it is to be emphasized that no precise formula, prescribed colloquy or set of guidelines have thus far been imposed upon the trial court as to how to make such determination. Even if it be assumed that the procedure here employed was less than classic (and it can not be doubted that it would have been desirable for the trial court to go through the redundant rigamarole of questions that most judges employ at such times just to make the record —even though such procedure does not necessarily insure that a defendant can not later challenge the voluntariness of his plea), the very same rule provides the defendant with a clear and traditional remedy if he should later consider that his plea was improperly made. Rule 1.170(f), Cr. P.R., states:

> “Withdrawal of Plea of Guilty. The court may, in its discretion, and shall upon good cause, at any time before sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set aside such judgment, and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty.”

The use of such. rule would accord with orderly recognized procedures in that it would afford the trial court an opportunity to assay the circumstances of the plea and make a record on that issue in order that the ruling on the defendant’s motion could be exactly reviewed upon appeal. To do otherwise is to nullify this section of the rule and engraft a haphazard method of handling such issues.

It is a matter of balance and understanding. It is to be remembered and reiterated again and again that the questions employed by the trial judge at plea time are a means to an end — not an end in and of themselves. The end — the fundamental issue — is whether or not the defendant understood what he was doing and voluntarily made his plea. If it appears that the defendant freely and voluntarily pled guilty, then how can it be of consequence that the trial judge at the time asked questions inadequate in quality and quantity? What gain is it if the trial judge asked ex*758tensive questions that would satisfy even the most demanding, if in fact the defendant’s guilty plea was coerced or otherwise defective? Of course, relief would be granted in such cases regardless of the questioning. So the matter to be graded is the quality of the plea, not the quality of the questioning. Although it is to be recognized that if the defendant makes a proper allegation and showing of coercion or the lack of understanding, the questioning employed by the trial judge at the time would be, among other things, undoubtedly relevant and material to the inquiry.

Law, and particularly that in the area of criminal jurisprudence, is filled with enough meaningless form and hackneyed procedure. Let us not add to it by fastening on to the trial judge a requirement «that he employ by cant and rote some set of stock questions without the use of which a guilty plea can not stand. Let us rather accord the criminal court bench the dignity and the discretion to determine whether such plea is voluntarily and intelligently made. We should assume that the procedure is adequate and the decision correct in the absence of some allegation and showing to the contrary and a reflection in the record that prejudice has been visited upon a defendant.1

This writer is not impressed with the undue solicitude and presumption of error that has been accorded this particular step or procedure in criminal prosecutions. We know that there can be violations of the defendant’s rights, constitutional and otherwise, from which he can obtain no relief in the absence of the showing of an objection and prejudice. To catalog a few:

Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. It was harmless error, looking at the record as a whole, for the defendant who did not confess not to have been able to cross-examine two of his co-defendants who did confess and chose not to testify.

State v. Galasso, Fla.1968, 217 So.2d 326. Although it was deemed error to admit into evidence certain statements made by one of the accused before he was given a Miranda warning, the error was considered harmless in that it could not have injuriously affected the substantial rights of either of the accused.

State v. Youngblood, Fla.1968, 217 So.2d 98; Belton v. State, Fla.1968, 217 So.2d 97. Failure to appoint separate counsel for indigent co-defendants did not constitute error absent a showing of prejudice.

Simpson v. State, Fla.App.1968, 211 So. 2d 862. The failure of the defendant to object to the admission of a confession because it had not been either signed by him nor read to or by him waived the objection. However, even if it were deemed error to admit the confession without objection, the error was harmless where there was other competent evidence to sustain the finding of guilt.

In conclusion, since I can not find any prejudice shown to the defendant by the error of not questioning his guilty plea, I *759would affirm without prejudice to defendant’s right to seek relief under Rule 1.-170(f), Cr.P.R., or Rule 1.850, Cr.P.R., if he be so advised.