Dissenting.
In a per curiam opinion the court has reversed its former decision of the affirmance of the judgment denying the writ of coram nobis and now holds the same to have been error and reverses the judgment.
I am unable to agree with the conclusion last reached, which is placed upon the statement that from the entire record in the case it reasonably appears that the accused was mislead into believing that “only the death penalty could legally be imposed on him after a verdict of guilty *236without recommendation to mercy by the jury; and that his surroundings were such that he reasonably may have believed and feared that his life was in-imminent danger of fatal mob violence if he did not plead guilty; and that by pleading guilty he had a chance of a sentence to life imprisonment. ’ ’
In the first opinion, prepared by me, it is stated that writs of corcem nobis had been “issued where an accused person through fear of mob violence is forced to plead guilty and who, upon such plea, is sentenced to prison.”
The affidavit of the defendant in support of his motion was. then reviewed and the conclusion reached that outside that affidavit the record disclosed no evidence of the existence of a state of facts such as he alleged; but, on the contrary, that the record disclosed rather that the defendant decided to withdraw his plea of not guilty which he had interposed and file the plea of guilty “through a sense of his own guilt and a resolution to place himself and his cause at the discretion of the court as to the penalty to be imposed.” And that if he was afraid of mob violence or the alleged threat of Mr. Moore to shoot him and that fear was upon him when he pleaded he did not so advise either his counsel or the court, which it was his duty, both to himself and the State, to do.
Rut it does not follow, that when a person charged with crime pleads guilty when under a fear of mob violence, that his plea is void. Nor is such the holding of the authorities. The element which vitiates the plea is that of constraint to plead guilty through fear of mob violence. If he pleads guilty in the secret belief that he stands a better chance for clemency by that plea than if he were to plead not guilty and risk a verdict of guilty by the jury without recommendation to mercy, the plea is not void; nor have I been able to find any authority which so holds.
*237In the Adler case, 35 Ark. 517, 37 Am. Rep. 48, the court held, as indicated by the first headnote, that a circuit judge has power to issue a writ of coram nobis to reverse a judgment of conviction when it appears that the defendant was insane at the time of the trial and the fact was not made known at the trial.
In the Calhoun case, 50 Kan. 523, 32 Pac. Rep. 38, 34 Am. St. Rep. 141, 18 L. R. A. 838, the court held that where the accused in a criminal prosecution is forced, through well grounded fears of mob violence, to plead guilty to the criminal charge and be sentenced to imprisonment he has a right to relief from such sentence. But in that case there was a mob 'in existence making threats against the accused when he put in the plea of guilty which was made by him before the mob had completely dispersed.
In the Pope case, 56 Fla. 81, 47 South. Rep. 487, this court said: In a criminal prosecution, a defendant has a right to plead guilty, but it should be entirely voluntary by one competent to know the consequences and should not be induced by fear, misapprehension, persuasion, promises, inadvertence or ignorance. In that ease the action of the lower court in refusing to allow the defendant, who had pleaded guilty, to withdraw his plea and interpose a plea of not guilty, was affirmed. The court said: “A defendant should be permitted to withdraw a plea of guilty given unadvisedly when application therefor is duly made in good faith and stostamed by proofs, and proper offer, is made to go to trial on a plea of not guilty. ’ ’ See also Clay v. State, 82 Fla. 83, 89 South. Rep. 353.
I voted for a rehearing upon the extraordinary motion out of an abundance of caution to avoid the possibility of error in concluding that the record disclosed no evidence outside the defendant’s own affidavit that he was constrained, by a well grounded fear of mob violence, to plead *238guilty. A careful examination of the record confirms my first opinion as expressed in the affirmance of the judgment.
There is no evidence whatsoever in the record to show the existence of a mob in DeLand upon the date that the defendant interposed his plea of guilty. The offense was alleged to have been committed in December, 1921. He escaped from a posse which had been formed that day and was searching for him. His escape was aided by the man, Robinson, called the “Hunchback.”
The defendant was arrested a few days afterwards in Jacksonville and shortly afterwards, in that city, made a confession of his crime. The confession appears to have been voluntarily made and is unimpeached except by his own affidavit in support of his motion for the writ of cor atm, nobis.
He was indicted on April 12, 1922; and was arraigned and pleaded not guilty on May 1st following. Upon the afternoon of the same day he withdrew that plea and interposed the plea of “guilty” after he had been fully informed by the Court as to the legal consequences to him of such plea. Now what happened between the morning hour when he pleaded not guilty and that afternoon when in jail he decided to withdraw that plea and interpose the plea of guilty which intention he followed up later when he was brought into court soon afterwards? The record discloses nothing except a conference with his two attorneys, whose conduct, this court in the first opinion said; “was in accordance with a correct conception of their duties and obligations as lawyers.”
When the defendant pleaded not guilty to the indictment that morning he was in full possession of all the facts, according to his own affidavit, which he alleges as a reason why the writ of coram nobis should have been issued and he allowed to withdraw his plea of guilty. He knew *239when lie interposed his plea of not guilty that morning that a posse, he called it a mob, had been formed to arrest him on the day the offense was committed several months befpre; that he had been token by train from Jacksonville to Sanford and then brought back through the country by the sheriff of DeLand that night and that in passing through DeLand on the train the sheriff had drawn the curtains so that the people upon the “outside” could not see him; he had been told that the husband of the woman whom he is alleged to have assaulted had threatened to shoot him if, in his testimony, he should say anything derogatory to her character; he knew that the feeling in DeLand was strong against him; yet he in full possession of this knowledge, pleaded not guilty when he was arraigned.
The afternoon of the same day, before being brought back to the court house for trial on his plea of not guilty, while in jail in conference with his attorneys he expressed the desire to plead guilty. When he so expressed himself his attorneys then told him that if he pleaded guilty the judge would take testimony to ascertain the degree of his guilt and impose the sentence of death or life imprisonment. The accused then asked his counsel how he should plead; whether “guilty or not guilty.” They declined'to advise him but told him that public sentiment in DeLand was strong against him but they believed a jury could be obtained that would render a fair and impartial verdict.
There is nothing that I can perceive in the conduct or advice of the defendant’s counsel that was in the slightest degree reprehensible or that indicated a disposition to shirk their duty or that tended to create fear in the mind of the accused that he would suffer violence at the hands of any mob or at the hands of the husband of the woman outraged if the defendant did not plead guilty. The record *240is wholly without proof of the existence of a mob at the time of the trial; nor is there any evidence in the record that there was any unusual excitement among the people, nor manifestation of feeling against the accused.
There is no proof offered in aid of the motion for a writ of coram nobis outside of the defendant’s own affidavit, made seven months after his sentence, which supports the theory that the plea of guilty could have been induced by a well grounded fear of mob violence. On the contrary the plea was entered with a full appreciation of its consequences. The trial court had thoroughly advised the defendant. Although the defendant knew all the facts which he alleges as a reasonable ground to apprehend danger from a mob and which he now claims constrained him to plead guilty, he entered a plea of not guilty when arraigned. He knew when he announced to his counsel that afternoon his intention to change his plea to a plea of guilty that the plea of not guilty had been attended by no such consequences as seven months later he alleged he was afraid would have happened had he not pleaded guilty. Other than the defendant’s own affidavit there is nothing in the record amounting to evidence of the existence of any conditions which could have created a well grounded fear in the defendant’s mind that he would suffer violence at the hands of a mob or any person if he failed to withdraw his plea of not guilty and interpose one of guilty.
So I am of the opinion that the judgment of the trial court was valid and should be affirmed.