RICHARD BYERS, A/K/A RICHARD AMPOLLINI, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Richard Byers appealed his 1960 robbery conviction and five-year sentence, filing a motion to vacate judgment under Criminal Procedure Rule 1. The trial court summarily denied the motion without a hearing, but the appellate court reversed in part and remanded because one ground—that the defendant was denied the right to obtain witnesses and compulsory process—required a formal hearing with testimony rather than summary dismissal.
The trial court properly rejected most of the motion's grounds on summary review because they either showed no prejudice or were conclusively refuted by the record. However, the claim that Byers was denied the right to obtain witnesses and compulsory process for obtaining witnesses required a formal hearing with testimony rather than summary denial, and the case must be remanded for such a hearing.
“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.”
Establishes the legal standard under Criminal Procedure Rule 1 requiring a formal hearing when the record does not conclusively show no relief is warranted
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Join FLexlaw to unlock all legal intelligenceByers was convicted of robbery in a non-jury trial in 1960 and sentenced to five years imprisonment. In July 1963, he filed a motion to vacate the jud…
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The appellant was convicted of robbery in a non-jury trial in 1960, and was sentenced to be confined for five years. In July of 1963 he filed a motion to vacate the judgment and for new trial under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix. Without a formal hearing such as would permit the taking of testimony the trial court denied the motion, and this appeal followed.
The motion set forth a number of grounds, including one on which the motion should not have been summarily denied. That ground alleged the defendant was “denied the right to obtain witnesses to testify in his favor and * * * to have compulsory process for obtaining witnesses in his behalf.”
The grounds of the motion contending the defendant was denied a right to be taken before a committing magistrate without delay, or to be advised of the charge against him and of his constitutional rights, and that he was not given opportunity to post bail, and was held incommunicado for a period of time, were properly rejected by the trial judge, as no prejudice was alleged or shown to have resulted therefrom. In this instance the defendant was tried on a plea of not guilty. See Milton v. Cochran, Fla.1962, 147 So.2d 137; Roy v. Wainwright, Fla. 1963, 151 So.2d 825, 828; Webster v. State, Fla.App.1963, 156 So.2d 890; State v. Weeks, Fla.1964, - So.2d-.
The ground of the motion which stated the defendant was not “given an opportunity to obtain legal counsel,” was conclusively refuted by the record, which showed the defendant was represented at the trial by an attorney. Trimble v. State, Fla.App.1964, 159 So.2d 265.
A further ground of the motion which charged the prosecuting attorney with improper conduct, presumably in the course of the trial, was a bare statement of a legal conclusion, and we will not hold the court in error for rejecting it. See Mankus v. State, Fla.App.1964, 161 So.2d 547; Dykes v. State, Fla.App.1964, 162 So.2d 675; Hale v. State, Fla.App.1964, 162 So.2d 5.
The contention that “On two occasions a witness for the State committed perjury,” not accompanied by an allegation that the state prosecuting officials were aware of the falsity of the alleged prejured testimony, did not constitute a ground for relief under Criminal Procedure Rule 1. Gamage v. State, Fla.App. 1964, 162 So.2d 529; Austin v. State, Fla.App. 1964, 160 So. 2d 730.
Returning to a consideration of the ground of the motion first mentioned, which charged defendant was denied the right to *59obtain witnesses and to have process issued for witnesses on his behalf, we conclude, in the interest of justice, that a hearing should be held on the motion as contemplated under the portion of Criminal Procedure Rule 1 which provides:
“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.”
Accordingly the order appealed from is affirmed in part and reversed in part, and the cause is remanded to the trial court for further proceedings limited as hereinabove set out, and as provided for in the above quoted portion of the rule.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Jackson v. State, 166 So. 2d 194 (Fla. 3d DCA 1964)…and (6) that a confession was extracted from him by force and later used in trial and that he was not given a prompt preliminary hearing. Regarding the first contention, the petitioner’s reliance on the recent case of Byers v. State, Fla.App.1964, 163 So. 2d 57, as authority, is misplaced. There is a material distinction between this case and Byers, where it was contended the petitioner’s right to compulsory attendance of witnesses on his behalf was denied him. Here the petitioner complains that a witness…
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Harris v. State, 167 So. 2d 312 (Fla. 3d DCA 1964)…ed testimony was given by a state’s witness, without showing knowledge thereof by the prosecution, did not state a ground for relief under Rule 1. Austin v. State, supra; Gammage v. State, Fla.App.1964, 162 So. 2d 529; Byers v. State, Fla.App. 1964, 163 So. 2d 57. The trial judge correctly rejected as insufficient the contention of suppression of certain evidence by the state, where it appeared that the defendant was represented at trial by counsel who knew or should have known of the evidence (said to have…
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Shellie Wilson v. State, 220 So. 2d 426 (Fla. 3d DCA 1969)…sed to the exercise of personal judgment by defense counsel) and this fact prejudiced the defendant’s case, the defendant should not be the one to suffer the consequences. Stratos v. State, Fla.App.1964, 167 So. 2d 771; Byers v. State, Fla.App.1964, 163 So. 2d 57; 24 C.J.S., Criminal Law, § 1443. Under the circumstances of this case, we feel that the trial judge abused the discretion afforded him under Rule 1.220(g) in not allowing the witness to testify. It is, therefore, held that the conviction on the c…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jetson ROY v. Louie L. Wainwright, 151 So. 2d 825 (Fla. 1963)
- Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964)
- Milton v. Cochran, 147 So. 2d 137 (Fla. 1962)
- Dykes v. State, 162 So. 2d 675 (Fla. 1st DCA 1964)
- Webster v. State, 156 So. 2d 890 (Fla. 1st DCA 1963)
- Bruce Hinson Gammage and Larry v. Gysin, 162 So. 2d 529 (Fla. 3d DCA 1964)
- Clifton (Clifford) Hale v. State, 162 So. 2d 5 (Fla. 1st DCA 1964)
- Fulenwider v. Brantley D. Thomas, 161 So. 2d 547 (Fla. 2d DCA 1964)
- Mankus v. State, 161 So. 2d 547 (Fla. 1st DCA 1964)
- Trimble v. State, 159 So. 2d 265 (Fla. 2d DCA 1964)