RAFAEL GONZALEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Although fundamental error may be raised by collateral attack through motion for post-conviction relief, Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976), aff’d, 363 So. 2d 331 (Fla.1978), the failure of the indictment charging the defendant with robbery under Section 812.13, Florida Statutes (1975) to expressly allege the element of specific intent was not fundamental error, Green v. State, 414 So. 2d 1171 (Fla. 5th DCA), pet. for rev. denied, 422 So. 2d 842 (Fla.1982), and the mere fact that the indictment was defective, Bell v. State, 394 So. 2d 979 (Fla.1981); Green v. State, supra, is not properly presented by way of motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850 because it could have been raised on the defendant’s direct appeal, Gonzalez v. State, 410 So. 2d 657 (Fla. 3d DCA 1982), but was not. Ashley v. State, 350 So. 2d 839 (Fla. 1st DCA 1977); see Alvord v. State, 396 So. 2d 184 (Fla.1981).
The same fate befalling the defendant’s argument concerning an improper jury instruction, Brill v. State, 350 So. 2d 1141 (Fla. 1st DCA 1977), cert. denied, 358 So. 2d 128 (Fla.1978), we affirm the trial court’s order denying the Rule 3.850 motion after evidentiary hearing.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gonzalez v. State, 510 So. 2d 633 (Fla. 3d DCA 1987)…[*635] 22 (Fla.1986); Witt v. State, 465 So. 2d 510 (Fla.1985). Affirmed. . Appellant’s two prior 3.850 motions were denied by the trial court; review in this court of the orders denying relief ultimately resulted in affirmance. Gonzalez v. State, 432 So. 2d 171 (Fla. 3d DCA 1983) (issues regarding indictment defect and improper jury instruction not properly raised in 3.850 motion; denial of motion after evidentiary hearing affirmed); Gonzalez v. State, 451 So. 2d 1041 (Fla. 3d DCA 1984) (motion’s allegatio…
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Denton v. State (Fla. 4th DCA 2026)
Authorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Bell v. State, 394 So. 2d 979 (Fla. 1981)
- Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976)
- Alvord v. State, 396 So. 2d 184 (Fla. 1981)
- Ussery v. State, 350 So. 2d 839 (Fla. 1st DCA 1977)
- Green v. State, 414 So. 2d 1171 (Fla. 5th DCA 1982)
- Garcia v. Mid-Florida Hauling, Inc., 350 So. 2d 1141 (Fla. 1st DCA 1977)
- Gonzalez v. State, 410 So. 2d 657 (Fla. 3d DCA 1982)
- State v. Golden, 410 So. 2d 657 (Fla. 3d DCA 1982)