LOUIS MATIRE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
This is an appeal from a denial of appellant’s 3.850 motion to set aside his 1968 murder conviction. The motion was based upon an improper comment on appellant’s exercise of his right to remain silent made at trial. Though he moved at that time for a mistrial, the motion was denied, but appellant failed to argue the issue on appeal. The trial court, after a hearing, denied his 3.850 motion.
We affirm the trial court’s action since appellant’s failure to raise the issue on appeal precludes him from raising it for the first time in a 3.850 motion. Pitts v. Turner, 362 So. 2d 134 (Fla. 4th DCA 1978). This decision is without prejudice, however, to appellant filing a petition for habeas corpus in this court based upon an allegation of ineffective assistance of appellate counsel. Smith v. State, 400 So. 2d 956 (Fla. 1981); Knight v. State, 394 So. 2d 997 (Fla. 1981).
BERANEK, GLICKSTEIN and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Matire v. State, 534 So. 2d 1168 (Fla. 4th DCA 1988)
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Matire v. Louie Wainwright, 811 F.2d 1430 (11th Cir. 1987)…l. The Florida Appellate Court affirmed the dismissal with the proviso that the dismissal was “without prejudice, however, to appellant filing a petition for habeas corpus ... based upon an allegation of ineffective assistance of appellate counsel.” 403 So. 2d 1049, 1050 (Fla.App. 4th 1981). Matire subsequently filed a third petition for post-conviction relief based on ineffective assistance of appellate counsel as to the Fifth Amendment issue. While the first comment was clearly relied upon, it is unclear fro…
Authorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Smith v. State, 400 So. 2d 956 (Fla. 1981)
- Pitts v. Turner, 362 So. 2d 134 (Fla. 4th DCA 1978)