LAWRENCE CAPERS AND LEONARD CAPERS, APPELLANTS.
v.
THE STATE OF FLORIDA, APPELLEE
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A claim that defendants were denied the right to be present during a critical stage of trial is cognizable in a post-conviction relief proceeding under Florida Rule of Criminal Procedure 3.850.
[1] A claim that a defendant was denied the right to be present during a critical stage of the trial proceeding is cognizable in a post-conviction relief proceeding.
[2] A prior appellate decision that invites a defendant to raise an issue via a motion for post-conviction relief constitutes the law of the case.
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Join FLexlaw to unlock all legal intelligenceAppellants sought post-conviction relief, claiming they were denied the right to be present during a critical stage of their trial. The trial court de…
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FERGUSON, Judge.
The order under review, which summarily denied appellants’ motion for post-conviction relief on a holding that the claim is not cognizable in a proceeding brought pursuant to Florida Rule of Criminal Procedure 3.850, is reversed. Appellants’ claim here, that they were denied the right to be present during a critical stage of the trial proceeding, may be raised in a post-conviction attack on the judgment of conviction. Cole v. State, 181 So. 2d 698 (Fla. 3d DCA 1966). The cases relied upon by the State, Middleton v. State, 465 So. 2d 1218 (Fla.1985) and Johnson v. Wainwright, 463 So. 2d 207 (Fla.1985), hold, on this point, that denial of a rule 3.850 motion without a new evidentiary hearing is proper where the record of the prior trial conclusively establishes that petitioner is entitled to no relief.
In the earlier appeals from the convictions we declined to consider the “involuntary-absence-from-the-courtroom” claim because it had not been presented to the trial court. We instead specifically invited appellants to present the question by a motion for post-conviction relief.1 That earlier disposition of the issue constitutes the law of this case, see State v. Stanley, 399 So. 2d 371 (Fla. 3d DCA), rev. denied, 408 So. 2d 1095 (Fla.1981), and is unaffected by subsequent supreme court decisions.
The motion for relief is sufficient on its face. On remand the trial court is to first consider the record to determine whether there is any merit to the claim. If the merit of the claim cannot be determined by examination of the record then an evidentiary hearing is required. The right reserved to appellants by our opinion in the prior appeal, to challenge their exclusion from the courtroom during critical stages of the trial, does not mandate a new evidentiary hearing. Middleton v. State; Johnson v. Wainwright.
Reversed and remanded.
. Capers v. State, 433 So. 2d 1324 (Fla. 3d DCA 1983), rev. denied, 444 So. 2d 416 (Fla.1984) and Capers v. State, 433 So. 2d 1323 (Fla. 3d DA 1983), approved, 455 So. 2d 358 (Fla.1984).
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Howard v. State, 484 So. 2d 1319 (Fla. 3d DCA 1986)…a “critical stage” of the trial so as to invoke the less demanding requirement of the defendant’s presence, at least upon request.1 See also Curtis v. State, 480 So. 2d 1277 (Fla.1985); Francis v. State, 413 So. 2d 1175 (Fla.1982); Capers v. State, 479 So. 2d 187 (Fla. 3d DCA 1985). Surely Jones, in which the defendant was present at the point in question, is no authority for the majority’s contrary conclusion. Moreover, because it is the nature of the issue, not the time of its occurrence, which is determin…
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Marshall v. State, 600 So. 2d 474 (Fla. 3d DCA 1992)…hat this court’s mandate in the prior appeal permitted the imposition of a departure sentence on remand. The mandate issued January 12, 1990, thus establishing the law of the case.4 See Love v. State, 559 So. 2d 198, 200 (Fla.1990); Capers v. State, 479 So. 2d 187, 188 (Fla. 3d DCA 1985), review denied, 491 So. 2d 280 (Fla.1986). See generally State v. Stanley, 399 So. 2d 371, 372 (Fla. 3d DCA), review denied, 408 So. 2d 1095 (Fla.1981).5 The trial court correctly interpreted the mandate to allow the impositi…
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Capers v. State, 515 So. 2d 258 (Fla. 3d DCA 1987)…use to the trial court with [*259] directions to “first consider the record to determine whether there is any merit to the claim” and, if such a determination could not be made on the record alone, to conduct an evidentiary hearing. Capers v. State, 479 So. 2d 187, 188 (Fla. 3d DCA 1985) [Capers II]. On remand, the trial court followed our directive and first reviewed the record. The trial court also heard the parties’ arguments before concluding that the Capers were not entitled to post-conviction relief. T…
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
- Johnson v. Louie L. Wainwright, 463 So. 2d 207 (Fla. 1985)
- Middleton v. State, 465 So. 2d 1218 (Fla. 1985)
- State v. Stanley, 399 So. 2d 371 (Fla. 3d DCA 1981)
- Cole v. State, 181 So. 2d 698 (Fla. 3d DCA 1966)
- Capers v. State, 433 So. 2d 1323 (Fla. 3d DCA 1983)
- Brown v. State, 455 So. 2d 358 (Fla. 1984)
- Capers v. State, 433 So. 2d 1324 (Fla. 3d DCA 1983)