ROBERT W. IRBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court properly denied the motion for postconviction relief because the grounds raised were either raised or could have been raised on direct appeal, and the motion lacked sufficient factual allegations.
Appellant filed a motion for postconviction relief alleging various errors, including denial of motions, improper joint trial, and failure to grant ju…
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MILLS, Judge.
Irby appeals the summary denial of his motion for postconviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. In his motion, he alleges numerous grounds, among them the denial of various motions by the trial court, error by the court in holding a joint trial with his codefendant, and failure to grant requests for certain standard jury instructions. The final ground stated by Irby is the ineffective assistance of his appellate counsel. His conviction was affirmed in Chapman, et al. v. State, 399 So. 2d 1149 (Fla. 1st DCA 1981). The trial court denied the motion, stating that all grounds raised by Irby were improperly raised in a Rule 3.850 motion. We agree and affirm.
All of the grounds for relief raised by Irby, with the exception of the final ground, either were or could have been raised during the direct appeal of his conviction. This defect has been found sufficient to support the summary denial of a Rule 3.850 motion. See Alday v. State, 431 So. 2d 714 (Fla. 1st DCA 1983).
The motion is also deficient in that it does not set forth sufficient facts to support the claim for relief but, rather, only conclusions of law. The assertion of conclusions of law without specific allegations of fact in support is not adequate in making a claim for relief under Rule 3.850. See McElroy v. State, 436 So. 2d 417, 418 (Fla. 1st DCA 1983); Moore v. State, 453 So. 2d 148 (Fla. 1st DCA 1984) (opinion filed July 13, 1984). These defects render the motion facially insufficient, see Evans v. State, 393 So. 2d 80, 81 (Fla. 5th DCA 1981).'
The proper method by which to raise allegations of ineffective assistance of counsel is by petition for writ of habeas corpus directed to the appellate court which considered the appeal, see Knight v. State, 394 So. 2d 997 (Fla.1981).
We affirm the trial court’s summary denial of Irby’s Rule 3.850 motion.
BOOTH and BARFIELD, JJ., concur.
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Stanley v. State, 501 So. 2d 90 (Fla. 1st DCA 1987)…without merit. Appellant's reference to “guidelines” is unclear. However, the sentencing guidelines were not in effect when appellant was sentenced, and the motion is facially insufficient to show entitlement to relief on this ground. Irby v. State, 454 So. 2d 757 (Fla. 1st DCA 1984). The only fact alleged in appellant’s 3.850 motion in support of this claim is that his defense counsel refused appellant’s request to reserve for appeal the trial court’s failure to follow “prescribed guidelines for proper sente…
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Ragan v. Dugger, 544 So. 2d 1052 (Fla. 1st DCA 1989)…irected to the appellate court which considered the direct appeal. Smith v. State, 400 So. 2d 956 (Fla.1981). A claim of ineffective assistance of appellate counsel is not properly raised in a motion for relief pursuant to Rule 3.850. Irby v. State, 454 So. 2d 757 (Fla. 1st DCA 1984); Futch v. State, 420 So. 2d 905 (Fla. 3rd DCA 1982). Because Ragan does not seek relief pursuant to Rule 3.850, the jurisdictional time bar of that rule is not applicable to this case. We decline the state’s suggestion that a jur…
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White v. State, 456 So. 2d 1302 (Fla. 2d DCA 1984)…ly denied defendant’s claim of ineffective assistance of appellate counsel, as the proper method by which to raise this issue is by petition for writ of habeas corpus directed to the appellate court which considered the direct appeal. Irby v. State, 454 So. 2d 757 (Fla. 1st DCA 1984); see generally Smith v. State, 400 So. 2d 956 (Fla.1981). AFFIRMED. HOBSON, A.C.J., and GRIMES, J., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- McELROY v. State, 436 So. 2d 417 (Fla. 1st DCA 1983)
- Alday v. State, 431 So. 2d 714 (Fla. 1st DCA 1983)
- Moore v. State, 453 So. 2d 148 (Fla. 1st DCA 1984)
- Evans v. State, 393 So. 2d 80 (Fla. 5th DCA 1981)
- Coach v. State, 453 So. 2d 148 (Fla. 1st DCA 1984)