#### Leo LAND, Appellant, v. STATE of Florida, Appellee.

No. S-80.

District Court of Appeal of Florida, First District.

July 24, 1973.

*707Leo Land, in pro per, no appearance.

Richard W. Ervin, III, Public Defender; William C. Owen, Sp. Asst. Public Defender; and Virgil Q. Mayo, Public Defender, amicus curiae.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.

PER CURIAM.

Defendant seeks appellate review of a judgment of conviction and sentence based upon a jury verdict finding him guilty of causing the death of a human being by the operation of a motor vehicle while intoxicated, contrary to the provisions of law.1 The sole point on appeal challenges the trial court’s denial of his motion for a new trial on the ground that the court erred in refusing to grant him an evidentiary hearing out of the presence of the jury on his motion to suppress a confession made by him because it was involuntarily given.

From the record it appears without dispute that during the progress of the trial while the State was putting on its evidence, the county sheriff was called as a witness. After a few preliminary questions and answers, the jury was excused in order that the State might proffer an al: leged confession made by appellant to the sheriff following the incident out of which this prosecution arose. In this proffer the sheriff testified that after administering the Miranda warnings to appellant and securing from him a waiver of his constitutional rights, appellant told the sheriff that at the time and place in question he had “bumped a woman” in front of the bank building and continued on in his automobile. At the conclusion of the sheriff’s proffered testimony, appellant’s trial counsel requested the court for permission to place defendant on the stand for the purpose of offering testimony bearing on the question of the voluntariness of the statements made by him to the sheriff as testified to by the latter in his proffer. The court denied defendant’s request, noting that it would permit defendant only to cross-examine the sheriff concerning his proffered testimony. When defendant’s counsel declined to cross-examine the sheriff, the court ruled that it would admit into evidence the proffered testimony of the sheriff concerning defendant’s confession. When the jury returned to the courtroom, *708the sheriff completed his testimony concerning- defendant’s confession as testified to in his proffer.

After the jury returned its verdict of guilty, appellant filed in the cause his motion for new trial which included as one of its grounds the allegation that the court erred in denying him the right to testify in the absence of the jury concerning the vol-untariness of the confession given by him to the sheriff. After hearing, the court rendered its order in which it held that upon further consideration it concluded that it had erred in denying appellant the right to testify outside the presence of the jury concerning the voluntariness of his confession. Because of such confessed error on its part, the trial court deferred ruling on appellant’s motion for a new trial and directed that an evidentiary hearing be held for the purpose of determining- the voluntariness of appellant’s confession. The order recited that only if after such hearing the court found and determined that the confession by appellant was involuntarily given, would justice require the granting of a new trial. A full evidentiary hearing was subsequently held and both parties were granted the opportunity of offering such evidence as they had concerning the voluntariness of appellant’s confession. The record reflects that at the commencement of the hearing appellant’s counsel announced that he had no evidence to offer concerning the voluntariness of appellant’s confession, but he would stand on his motion for new trial and insisted that a new trial on all issues, including the guilt or innocence of defendant, be granted. Because of this announcement the court adjourned the hearing, denied appellant’s motion for a new trial and rendered the judgment of conviction and sentence which is appealed herein.

The primary question raised by appellant concerns the procedure followed by the trial court in disposing of his motion for new trial. He contends that once the trial court acknowledged its error in denying him the right to a full evidentiary hearing during the course of the trial outside the jury’s presence on his motion to suppress the confession, it had no alternative but to set aside the verdict of guilty rendered by the jury and to grant him a new trial on all issues in the case.

Rule 3.190(i), Rules of Criminal Procedure, 33 F.S.A., provides that a motion to suppress a confession or admissions, illegally obtained shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial. The rule further provides that at the hearing on such motion, the court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion.

The landmark case in this country concerning the procedure to be followed in disposing of a motion to suppress a confession or admission in order to accord a defendant full protection of his constitutional rights is that of Jackson v. Denno 2 decided by the Supreme Court of the United States. In this case the trial court denied the defendant’s motion for an evidentiary hearing on the voluntariness of the confession sought to be introduced in evidence against him by the state. In denying such motion, the trial court ruled that both parties could submit evidence on the issue of voluntariness during the trial and by its verdict the jury would determine this issue. The Supreme Court held that such procedure violated the defendant’s constitutional rights to due process and equal protection of the laws which required that the issue of voluntariness be actually and reliably-determined by the court out of the presence of the jury before permitting it to be offered into evidence. Such procedure has come to be known as the Orthodox Rule followed by most jurisdictions in this country, and which was followed by this court *709in the cases of Allen v. State3 and Kitchens v. State.4 Based upon the foregoing authorities we hold that the trial court in the case sub judice was eminently correct when, in consideration of appellant’s motion for new trial, it confessed the commission of error when it denied appellant’s motion for an evidentiary hearing out of the jury’s presence on the voluntariness of his alleged confession.

The primary question with which we are concerned is whether the trial court departed from the essential requirements of law in deferring ruling on appellant’s motion for a new trial and directing that a .full evidentiary hearing be held for the purpose of determining whether appellant’s confession as testified to by the county sheriff was voluntarily given. As stated above, in its order the trial court stated that if the evidence adduced at such hearing established that appellant’s confession was not voluntarily given, a new trial would be granted; otherwise, it would be denied and a judgment would be rendered upon the verdict of guilty. This identical question was posed to the Supreme Court of the United States in Jackson v. Denno, supra, upon which decision this court relied in rendering its opinions in the Allen and Kitchens cases cited above. In disposing of the question of the procedure to be followed in that case, the Supreme Court said:

> “It is New York, therefore, not the federal habeas corpus court, which should first provide Jackson with that which he has not yet had and to which he is constitutionally entitled — an adequate evidentiary hearing productive of reliable results concerning the voluntariness of his confession. It does not follow, however, that Jackson is automatically entitled to a complete new trial including a retrial of the issue of guilt or innocence. Jackson’s position before the District Court, and here, is that the issue of his confession should not have been decided by the convicting jury but should have been determined in a proceeding separate and apart from the body trying guilt or innocence. So far we agree and hold that he is now entitled to such a hearing in the state court. But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson’s confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue of voluntariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an eviden-tiary hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence.

> “Obviously, the State is free to give Jackson a new trial if it so chooses, but for us to impose this requirement before the outcome of the new hearing on vol-untariness is known would not comport with the interests of sound judicial administration and the proper relationship between federal and state courts.

From the foregoing it is self-evident that the Supreme Court did not consider that the error committed by the trial court in denying the defendant an independent hearing on its motion to suppress was such *710an error that automatically required a granting of a new trial on all issues of the case. That court determined that only if a post-trial hearing established that the confession was involuntarily given would a new trial be granted; otherwise, the judgment of conviction and sentence would stand unless reversed by an appellate court on other grounds. This holding was subsequently followed by the Supreme Court in its decision rendered in the case of Sigler v. Parker.5

A similar conclusion as those reached in Jackson v. Denno, supra, and Sigler v. Parker, supra, was reached by our own Supreme Court in the case of Fowler v. State.6 In Fowler, defendant made a pretrial motion for the appointment of expert witnesses to examine defendant for the purpose of determining whether he was sane at the time he committed the crime with which he was charged and whether he was mentally competent to stand trial. In response, to this motion the trial court appointed three doctors who examined defendant, two of whom found him to be insane and not competent to stand trial but the third reached a contrary conclusion. Without holding the evidentiary hearing requested in defendant’s original motion for the appointment of experts to examine him, the trial court rendered an order finding defendant to be competent and ordering the case set for trial.

Upon consideration of the points urged on appeal, the Supreme Court held that the trial court erred in failing to grant defendant’s motion for an evidentiary hearing on the issue of insanity and incompetency prior to the commencement of the trial. This holding, however, was not considered sufficient to automatically grant defendant a new trial as requested by his post-trial motion. In so holding, the Supreme Court of Florida said:

> “However, our finding in this regard does not require vacation of the judgment and sentence entered against defendant at this time. Knight v. State, 164 So.2d 229 (Fla.App.3rd, 1964); United States v. Walker, 301 F.2d 211 (6 Cir.1962). Instead, the cause is temporarily remanded to the Circuit Court of Pinellas County with directions that the claim of insanity at the time of trial be determined in a full hearing as required by CrPR 1.210(a). If upon such hearing the trial court determines that the defendant was sane at the time of trial, the court is ordered to forthwith transmit the entire record of the case, including a transcript of the sanity hearing, and a copy of the trial judge’s order finding defendant sane, back to this court. At such time we will consider defendant’s remaining points on appeal as raised by the briefs and argument previously submitted to the court. We decline to adjudicate defendant’s remaining contentions at this time because a finding of insanity at the time of trial would invalidate the entire trial proceeding and thereby render defendant’s remaining arguments moot. Horace v. Culver, 111 So.2d 670 (Fla.1959); Perkins v. Mayo, 92 So.2d 641 (Fla.1957); and Deeb v. State, 118 Fla. 88, 158 So. *880*(1935).

> “If, however, the trial Court shall determine the defendant was insane at the time of trial but is now sane, the Court is directed to vacate the adjudication of guilt and sentence, to give the defendant an opportunity to replead, and to set a new trial date; or if the holding of the trial court shall be that the defendant was insane at the time of trial and is now or remains insane, the Court is directed to vacate the adjudication of guilt and sentence and commit the defendant to the proper institution. . . . ”

It thus appears that the Supreme Court of Florida in Fowler, supra, followed the same procedure as was adopted by the Supreme Court of the United States in Jack*711son, supra, each court refusing to order a new trial because of the error committed by the trial court in denying the defendants in each of those cases an independent evidentiary hearing out of the presence of the jury on their pretrial motions, but instead ordering that post-trial evidentiary hearings be held for determining the issues raised by such motions. Each court agreed that if as a result of such evidentiary hearings the defendant’s confession in Jackson was found to be voluntary or that the defendant in Fowler was found to be sane and competent, then the judgments of conviction and sentence would be affirmed; otherwise, they would be set aside and new trials granted at that time.

The trial court in the case sub jud-ice followed precisely the reasonable and well-conceived procedure adopted and followed by the supreme courts in the two cases mentioned above. By following such procedure, the constitutional rights of the defendant were protected and his right to a fair trial preserved. If the confession in this case was voluntarily given, and appellant declined the opportunity granted him by the court to prove otherwise, then there was no necessity for a retrial of this case on all issues including the defendant’s guilt or innocence, which issue has already been determined by the jury. Our court dockets are entirely too congested and the time of our judges, attorneys, jurors, and witnesses too heavily encumbered to require useless and expensive trials which will serve no real purpose. Because of the foregoing reasons and upon the authorities above cited, we are of the view that the trial court did not abuse its discretion or commit reversible error in the procedure followed by it in the case sub judice, and its judgment and sentence should be affirmed.

Admittedly, this court, in the split decisions rendered in the Allen and Kitchens cases, supra, reached a contrary conclusion and held that under circumstances identical with those in the case sub judice the judgments of conviction should be set aside and new trials granted. The court elected to reject the procedure outlined by the Supreme Court of the United States in Jackson, supra, for the stated reason that Jackson was a habeas corpus proceeding while Allen and Kitchens were cases of direct appeal from the final judgments of conviction. We submit that such a finely spun distinction possesses but a shadow of a difference. It falls far short of justifying the necessity of going to the time and expense of retrying this case with the possibility of dismissal which might result from the absence of witnesses and the loss or destruction of evidence. The procedure which we required to be followed in Allen and Kitchens is contrary to that authorized and sanctioned by the Supreme Court of Florida in Fowler, supra, which incidentally was a case involving a direct appeal from a judgment of conviction and sentence, as is the case sub judice, and as were the cases of Allen and Kitchens. Parenthetically, our Supreme Court in reaching its decision in Fowler based it upon and cited with approval the case of United States v. Walker *7***which was a ha-beas corpus proceeding similar to the Jackson case. Thus, our own Supreme Court has prescribed a uniform procedure for handling matters of this kind regardless of whether the appellate review is by direct appeal or by habeas corpus.

Because of the conflicting opinions existing on this court concerning the proper procedure which should be followed in cases of this kind, we will file our certificate in the case holding our decision to be one involving a question of great public interest so that certiorari may be entertained by the Supreme Court and an authoritative rule of law promulgated which will hereafter govern the issue involved herein.

Although Judge Spector concurred in the majority opinion in Allen v. State, supra, approving the granting of a new trial on all issues where the Jackson v. Denno rule *712had been violated rather than a post-trial evidentiary hearing on the issue of volun-tariness only, he now recedes from that view not only because of the superseding effect of our Supreme Court’s decision in Fowler, supra, but because upon reconsidering and reweighing the countervailing arguments bearing on the issue he simply feels his concurrence in Allen was erroneous.

We have carefully considered appellant’s remaining point on appeal but find it to be without substantial merit. The judgment appealed is accordingly affirmed.

WIGGINTON, Acting C. J., and SPEC-TOR, J., concur.

JOHNSON, J., dissents.

1

. F.S., § 860.01, F.S.A.

2

. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 925, 926, 1 ALR3d 1205.

3

. Allen v. State, (Fla.App.1970) 239 So.2d 33.

4

. Kitchens v. State, (Fla.App.1970) 240 So.2d 321.

5

. Sigler v. Parker, 396 U.S. 482, 90 S.Ct. 667, 24 F.Ed.2d 672.

6

. Fowler v. State, (Fla.1971) 255 So.2d 513, 515, 516.

7

. Under States v. Walker, (6 Cir.1962) 301 F.2d 211.

JOHNSON, Judge

(dissents):

The questions which are determinative of this case are as follows:

> Did the trial court err when he did not hold a full evidentiary hearing to determine the voluntariness of a confession obtained from the defendant *prior*to admitting the same to the jury? Or, if error, could same be corrected by holding such hearing after trial ?

The majority of this Court has answered the first question affirmatively and the second negatively. With due respect, I must register my dissent from their holding on the second issue.

As recognized by the majority opinion, there is no doubt that the trial court erred in refusing, over objection, to hold an evi-dentiary hearing on the question of the voluntariness of the appellant’s confession prior to admitting the same to the jury. The record demonstrates that defense counsel strenuously objected to the refusal to allow appellant, outside the presence of the jury, to testify concerning the volun-tariness of his confession. Defense counsel stated:

> “Now, further to clarify the record will the record reflect that I am objecting to the Court’s ruling on the grounds that the Court has denied the Defendant the right to present further evidence concerning the matters which is necessary for the Court to rule upon the vol-untariness of the confession.”

After a hearing on appellant’s motion for new trial, the trial judge duly recognized his prior erroneous ruling and held that the error could be rectified by holding an evidentiary hearing for the purpose of determining the voluntariness of appellant’s confession. The order recited that only if the court found that appellant’s confession was involuntarily given would justice require the granting of a new trial. It is with this portion which I cannot agree.

In both Allen v. State and Kitchens v. State, cited in the majority opinion, this Court held that it is reversible error for the trial judge not to determine the volun-tariness of a confession before submitting the same to the jury, and that such an error mandates the granting of a new trial. The majority opinion in this case, citing Jackson v. Denno, supra, and the recent Florida Supreme Court case of Fowler v. State, supra, now attempts to put this Court in the posture of receding from Allen and Kitchens, supra; but it must be remembered that Judge Wigginton dissented in both Allen and Kitchens and while Judge Spector concurred in the Allen case, he now recedes from this concurrence, Judge Rawls concurred with Judge Carroll in the Kitchens case in which the Allen case was cited with approval, and therefore, at this time, a majority of the members of this Court do not recede from Allen and Kitchens.

The majority opinion quotes extensively from the 1964 case of Jackson v. Denno, supra, to illustrate that a new trial is not required to correct the error committed when the trial judge fails to determine the voluntariness of a confession. The words *713used by the United States Supreme Court, were:

> . . But as to Jackson, who has already been convicted and now seeks collateral relief, we cannot say that the Constitution requires a new trial if in a soundly conducted collateral proceeding, the confession which was admitted at the trial is fairly determined to be voluntary.”

While the United States Supreme Court, in a split decision, did hold that under the facts of the Jackson case, a new trial was not constitutionally required, we must not lose sight of the rest of that opinion. In the sentence in the Jackson case immediately preceding the above quoted sentence, the United States Supreme Court has this to say:

> “. . . It is both practical and desirable that in cases *to be tried hereafter*a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence.” (Emphasis supplied.)

In this statement it appears to me that the Supreme Court is saying that in trials “tried hereafter”, the determination of vol-untariness must be made prior to the confession being admitted to the jury.

In the Jackson case, supra, Justice Black and Justice Tom Clark both held that Jackson was entitled to a *complete new trial.*(Justices Harlan and Stewart dissented also.)

It appears to me that the last quoted citation, supra, was the basis for the ruling in our prior Allen and Kitchens cases, and especially when the question is specifically raised by defense counsel, prior to the evidence being admitted, I think the same commands the granting of a new trial in the case sub judice. To simply hold an ev-identiary hearing after the trial is concluded is to subject a defendant to piecemeal prosecution.

There are other compelling reasons why a defendant should be afforded an independent hearing as to the voluntariness of his confession prior to trial. The rule excluding a coerced confession is more than a rule excluding hearsay. Due process of law requires that a coerced confession be excluded from consideration by the jury and that the issue of coercion be tried by an unprejudiced trier. The truth or untruth of the confession is immaterial and, regardless of the pious fictions in which courts sometimes indulge, it is useless to contend that a juror who has heard the confession will or can be uninfluenced by his opinion as to its truth or falsity. Along the same vein, I have serious doubts that a trial judge, after a conviction -by a jury composed of fellow community members and probable friends of whose opinion he may view with high regard, can any more be uninfluenced by such jury conviction than the jury can be uninfluenced by the fact of a confession. Any prejudice, whether on the part of the jury or the trial court, is contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. [I note parenthetically that the majority opinion speaks of congested court dockets and the expenses of trial in support of its opinion that a new trial is not required if the post-trial hearing results in a determination that the confession was voluntarily given. These reasons have never been deemed adequate to deny a defendant due process of law;, which includes a trial free from prejudice.]

Erroneous admission to the jury of an involuntary confession can very well alter the entire scheme of the accused’s defense, which could certainly result in an injustice to a defendant. It is for this reason that I do not feel that the case of Fowler v. State, 255 So.2d 513 (Fla., 1971), relied upon by the trial court and the majority of this Court, is applicable to the present case. The trial judge termed the Fowler -case an “analogous situation” in which a post-trial hearing was employed to correct a pretrial *714procedural error. I do not think the two cases are comparable. In Fowler, the trial judge erroneously failed to conduct a pretrial hearing to determine competency to stand trial as required by the Rules of Criminal Procedure, and the Florida Supreme Court held that a post-trial hearing on the issue of competency would cure the error. I feel that the distinction between the Fowler case and the case sub judice lies in the fact that the failure to afford a plenary hearing before trial on the issue of competence to stand trial is not such as would necessarily affect the choice of evi-dentiary considerations to be subsequently presented to the jury. On the other hand, the trial court's disposition of the issue of voluntariness of a challenged confession gives rise to an impact on the entire trial proceedings and dictates, to a considerable extent, the trial strategy to be utilized by defense counsel, including evidentiary considerations to be presented to the jury. I do not believe that the procedure approved in Fowler commands the adoption of such a post-trial corrective hearing where the issue concerns the voluntariness of a confession.

In conclusion, I feel that the trial court erred when it ignored the holdings of this Court in Allen and Kitchens, supra, as well as that statement of the United States Supreme Court in Jackson v. Denno, supra, which states in effect that, *in cases to be tried hereafter,*the question of the volun-tariness of a challenged confession should be answered *before*or *at trial.*The prior error of refusing to hold an independent hearing on the voluntariness issue *cannot*be corrected by a post-trial hearing. For the reasons stated above, a new trial is the only way the appellant can be given a fair trial.

I would reverse the order denying appellant’s motion for new trial and remand this cause to the trial court for new trial proceedings, with directions to hold an eviden-tiary hearing, in the absence of the jury, either before or during the trial, on the issue of the voluntariness of appellant's confession.