
    LEO BAILEY v. STATE OF FLORIDA
    21 So. (2nd) 714
    January Term, 1945
    April 16, 1945
    
      W. W. Flournoy, and Frank de Graffenried (Montgomery, Ala.) for petitioner.
    
      J. Tom Watson, Attorney General, and Sumter Leitner, Assistant Attorney General, for respondent.
   PER CURIAM:

The petition for leave to file petition in the court below for writ of error coram nobis should be' denied on authority of Cole v. Walker Fertilizer Company, 147 Fla. 1, 1 So. (2nd) 864, and Thompson v. State, 154 Fla. 769, 18 So. (2nd) 788.

So ordered.

CHAPMAN, C. J., TERRELL, THOMAS, ADAMS and SEBRING, JJ., concur.

BUFORD, J., concurs specially.

BROWN, J., dissents.

BROWN, J.,

dissenting:

My view is that while the petition may not comply with the rules governing the sufficiency of petitions for writs of error coram nobis, this Court should exercise its power, the mandate not yet having been issued, to set aside its former judgment of affirmance, and now remand this case for a new trial —not only for the reasons stated in the dissenting opinions of Mr. Justice ADAMS and of this writer heretofore filed but because on the record as a whole, this appellant is legally entitled to it.

BUFORD, J.,

concurring specially:

I unqualifiedly concur in the order entered herein denying the petition of Leo Bailey to apply to the lower court for writ of error coram nobis. I am constrained to say, however, that while the record fails to disclose any facts or circumstances requiring a reversal of the judgment for a new trial or a reversal of the judgment with directions for modification of the judgment and sentence under the provisions of Section 310, Fla. Criminal Procedure Act, there appear in the record matters which should properly appeal to the consideration of the board of pardons for clemency and upon which the jury might well have based a recommendation for mercy.

I, therefore, respectfully commend the petitioner to the tender mercy of the board of pardons for the consideration of the petition for commutation from death to life imprisonment.

I base my recommendation in this regard not only on the original record as it appears in this Court but also on exhibits which are attached to and made a part of the petition for leave to apply to the lower court for writ of error coram nobis.

CHAPMAN, C. J., concurs.  