ARTHUR LEE FERBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Arthur Lee Ferby appeals the summary denial of his Rule 3.850 post-conviction relief motion challenging his criminal conviction. The court affirmed the denial, holding that Ferby's complaints about trial counsel's strategic decisions—including failure to call witnesses, take depositions, and cross-examine adequately—are matters within counsel's discretion and not proper grounds for ancillary post-conviction relief.
The court held that Ferby's claims do not present proper grounds for post-conviction relief. Matters involving trial counsel's judgment and strategy, including decisions about which witnesses to call, whether to take depositions, the extent of cross-examination, and whether to make evidentiary objections, fall within the discretion of trial counsel and are not cognizable in ancillary post-conviction proceedings.
[1] Matters reviewed or reviewable on direct appeal are not proper grounds for post-conviction relief.
[2] Rulings on the admissibility of evidence are generally not proper grounds for post-conviction relief.
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Establishes that post-conviction relief under Rule 3.850 cannot be used to revisit issues already or properly reviewable on direct appeal.
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Join FLexlaw to unlock all legal intelligenceFerby was convicted after trial and filed a direct appeal (Ferby v. State, 381 So. 3d 785), which was decided on the merits. Subsequently, he filed a …
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COWART, Judge.
This is an appeal under Florida Rule of Appellate Procedure 9.140(g) from the summary denial of a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Most of the motion relates to matters which were either reviewed or were reviewable by the direct appeal taken from the judgment following the trial of this case, Ferby v. State, 381 So. 3d 785 (Fla. 5th DCA 1980), and are not matters which are proper grounds for ancillary post-conviction relief. See Powell v. State, 244 So. 2d 746 (Fla. 1st DCA 1971); Brown v. State, 227 So. 2d 527 (Fla. 1st DCA 1969), appeal dismissed, 237 So. 2d 175 (Fla. 1970). Included in this category is appellant’s complaint about rulings of the trial judge relating to the admissibility of certain evidence, see, e.g., Nelson v. State, 281 So. 2d 49 (Fla. 3d DCA 1973); Whitlow v. State, 256 So. 2d 48 (Fla. 2d DCA 1971); and the sufficiency of the evidence. See, e.g., Robinson v. State, 194 So. 2d 29 (Fla. 2d DCA 1967); Brooks v. State, 188 So. 2d 883 (Fla. 4th DCA), cert. denied, 192 So. 2d 496 (Fla. 1966).
The defendant claims he was inadequately and ineffectually represented by his trial counsel of record because his counsel: did not call his codefendant and other witnesses to testify; failed to take depositions; failed to properly cross-examine witnesses; and failed to object to the admissibility of certain evidence. These matters are within the judgment and strategy of trial counsel and are not a proper ground for complaint or relief. See, e.g., Fuller v. Wainwright, 238 So. 2d 65 (Fla. 1970) (failure to call witnesses on behalf of defense is within discretion of trial counsel); Brown v. State, 404 So. 2d 157 (Fla. 5th DCA 1981); Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981) (failure to talk to or subpoena alleged witnesses was facially insufficient where motion did not allege what prospective testimony would have been); Mauldin v. State, 382 So. 2d 844 (Fla. 1st DCA 1980) (failure to have appellant see a psychiatrist and to call the doctor as a witness was discretionary act of trial counsel); Powell v. State, 244 So. 2d 746 (Fla. 1st DCA 1971) (number of witnesses called on behalf of defense and extent of examination and cross-examination are matters within the discretion of the attorney); Meinsen v. State, 240 So. 2d 188 (Fla. 2d DCA 1970), cert. denied, 245 So. 2d 86 (Fla. 1971); Biggs v. State, 239 So. 2d 281 (Fla. 2d DCA 1970); Solloa v. State, 227 So. 2d 217 (Fla. 3d DCA 1969). Since the points raised in this case are resolvable as a matter of law without the necessity of taking evidence as to facts, the record conclusively shows that appellant is entitled to no relief and therefore the order denying relief is
AFFIRMED.
COBB, J., concurs.
SHARP, J., concurs, in result only.
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Citator
Cited By (20 total)
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Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981)…post-conviction relief under Florida Rule of Criminal Procedure 3.850. Most of the motion relates to matters which were either reviewed or were reviewable by the direct appeal taken from the judgment following the trial of this case, Ferby v. State, 381 So. 3d 785 (Fla. 5th DCA 1980), and are not matters which are proper grounds for ancillary post-conviction relief. See Powell v. State, 244 So. 2d 746 (Fla. 1st DCA 1971); Brown v. State, 227 So. 2d 527 (Fla. 1st DCA 1969), appeal dismissed, 237 So. 2d 175 (Fl…
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Askari Abdullah Muhammad v. State, 426 So. 2d 533 (Fla. 1982)…re find no deficiency in trial counsel’s not objecting to the prosecutor’s remarks. See generally Washington v. State, 397 So. 2d 285 (Fla.1981); McNeal v. State, 409 So. 2d 528 (Fla. 5th DCA), rev. denied, 413 So. 2d 876 (Fla.1982); Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981). In conclusion, we agree with the trial court that appellant, even if he had proved all the factual allegations of his motion, would have been unable to establish that any act or omission of his trial counsel was a substantial d…
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McNEAL v. State, 409 So. 2d 528 (Fla. 5th DCA 1982)…ink courts should review any specific discretionary or judgmental act or position of trial counsel, whether tactical or strategic, on an inquiry as to effectiveness of counsel. See Baker v. State, 404 So. 2d 1151 (Fla. 5th DCA 1981); Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981); Brown v. State, 404 So. 2d 157 (Fla. 5th DCA 1981); Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981). When faced with the duty of attempting to avoid the consequences of overwhelming evidence of the commission of an atrociou…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981)
- Fuller v. Wainwright, 238 So. 2d 65 (Fla. 1970)
- Solloa v. State, 227 So. 2d 217 (Fla. 3d DCA 1969)
- Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981)
- Whitlow v. State, 256 So. 2d 48 (Fla. 2d DCA 1971)
- In the Interest of S. T. P., 194 So. 2d 29 (Fla. 3d DCA 1967)
- Rubin James Mauldin v. State, 382 So. 2d 844 (Fla. 1st DCA 1980)
- Meinsen v. State, 240 So. 2d 188 (Fla. 2d DCA 1970)
- Powell v. State, 244 So. 2d 746 (Fla. 1st DCA 1971)
- Nelson v. State, 281 So. 2d 49 (Fla. 3d DCA 1973)