Summary
In Kellums v. State, supra, there was an unverified motion signed only by the defendant's attorneys. The record of the judgment of conviction in that case showed that at the time the defendant pleaded guilty he was advised by the court of the penalties for the crime charged, of his right to have counsel, which he refused, and that the testimony of two arresting officers was taken after the plea of guilty was entered.
Summary of this case from Kuhn v. StateOpinion
No. 27,866.
Filed September 23, 1943.
1. CRIMINAL LAW — Arraignment and Plea — Plea of Guilty — Withdrawal — Issue of Fact Presented by Motion. — Defendant's motion to withdraw his plea of guilty is a pleading presenting the issue of fact as to whether the plea was made freely and understandingly. p. 589.
2. CRIMINAL LAW — Arraignment and Plea — Plea of Guilty — Withdrawal — Failure to Sustain Allegation of Unverified Motion — Effect. — If no evidence is introduced in support of an unverified motion to withdraw a plea of guilty, the facts recited in the motion are not proved. p. 589.
3. CRIMINAL LAW — Evidence — Failure to Present by Bill of Exceptions — Error in Overruling Motion to Withdraw Plea of Guilty Not Shown. — Where, on appeal from the action of the court in overruling an unverified motion to withdraw a plea of guilty, the record disclosed no bill of exceptions containing evidence submitted in support of the motion, appellant failed to show error in the overruling of the motion. p. 589.
4. CRIMINAL LAW — Arraignment and Plea — Plea of Guilty — Withdrawal — Nunc Pro Tunc Entry Amending Judgment After Motion Filed — Ruling on Motion to Strike Harmless. — Where, after defendant filed a motion to withdraw his plea of guilty, the judgment was amended by nunc pro tunc entry to show that when he pleaded guilty he was advised by the court of the penalties prescribed for the offense charged, of his right to have counsel, which he refused, and that testimony of the arresting officers was taken after the plea was entered, defendant could not be harmed by the denial of his motion to strike out the entry, since if it was improperly made it was a nullity and the original judgment would stand; and its sufficiency in form or substance was not attacked. p. 590.
From the Lawrence Circuit Court; Chester A. Davis, Judge.
Noble Kellums was convicted of driving an automobile while under the influence of intoxicating liquor upon his plea of guilty and thereafter filed a motion for permission to withdraw the plea of guilty and enter a plea of not guilty. From a judgment overruling the motion, he appealed.
Affirmed.
Woolery Fletcher, of Bedford, for appellant.
James A. Emmert, Attorney General, Frank Hamilton, First Assistant Attorney General, and Frank E. Coughlin, Deputy Attorney General, for the State.
Upon a plea of guilty to an affidavit charging him with driving an automobile while under the influence of intoxicating liquor and also charging a prior conviction of a like offense, appellant was fined $5.00, sentenced to imprisonment in the Indiana Penal Farm for sixty days and his driver's license was "revoked" for 120 days. Three days after his conviction and sentence attorneys appeared for him and filed an unverified motion, signed only by them, for permission to withdraw the plea of guilty and to enter a plea of not guilty. Apparently without submission of evidence the motion was overruled. Later by a nunc pro tunc entry made upon motion of appellee, the judgment was amended to show that when he pleaded guilty he was advised by the court of the penalties prescribed for the offense charged and his right to have counsel, which he refused, and that the testimony of two arresting officers was taken after the plea of guilty was entered. Appellant's motion to strike out this entry was overruled.
Appellant's motion to withdraw his plea of guilty was a pleading presenting the issue of fact as to whether the plea was made "freely and understandingly." Eagle v. State, 1-3. 221 Ind. ante, p. 475, 48 N.E.2d 811. If no evidence was introduced the facts recited in the motion were not proved. Soucie v. State (1941), 218 Ind. 215, 226, 31 N.E.2d 1018, 1022. If evidence was submitted it should be in a bill of exceptions and none is found in the record. Appellant therefore has failed to show error in overruling the motion to withdraw the plea of guilty.
He was not harmed by denial of his motion to strike out the nunc pro tunc entry. If it was improperly made it was a nullity, and the original judgment stands. Its sufficiency 4. in form or substance is not attacked.
Judgment affirmed.
NOTE. — Reported in 50 N.E.2d 662.