JIMMIE GARTRAIL KIRKLAND, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jimmie Kirkland appealed a trial court's summary dismissal of his petition for post-conviction relief under Criminal Procedure Rule 1. The court affirmed the dismissal, holding that Kirkland's contentions—including claims of ineffective assistance of counsel and improper property seizure—were factually unsupported and insufficient to warrant a formal hearing.
The trial court properly dismissed the petition summarily. Kirkland's contentions of ineffective assistance of counsel and improper property seizure were legally and factually insufficient to warrant a formal hearing, as they lacked evidentiary support and were not properly raised in the post-conviction context.
“Such conclusions unsupported by facts will not suffice.”
Establishes that bare allegations without factual support cannot sustain a claim for post-conviction relief.
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Join FLexlaw to unlock all legal intelligenceIn May 1963, Kirkland was prosecuted in Dade County under two informations charging robbery. At arraignment, represented by a public defender, he plea…
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In May of 1963 the petitioner was prosecuted in Dade County under two informa-tions charging him with robbery. At arraignment, where he was represented by an assistant public defender, he pleaded not guilty and waived jury trial in each case. Thereafter, while so represented by the public defender he withdrew the pleas of not guilty and pleaded guilty in the two cases. Adjudications of guilt and concurrent 2 year sentences followed. Approximately six months later he petitioned the trial court for relief under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix. The trial judge summarily dismissed his petition. His appeal to this court presents the question of whether the petition set forth grounds entitling petitioner to a formal hearing in the trial court. On examination of the record and after oral argument, we conclude that the trial judge was eminently correct, and we affirm his order of dismissal.
The petition recited a number of contentions which were patently insufficient. Among them, and deserving of comment, are the contentions that he was not properly represented by the public defender, and that the petitioner had his property seized against his will and without a search warrant. As to the first of those contentions it is argued by the state, and we agree, that the claim of the petitioner that his attorney did not properly represent him, because he did not interview him or investigate the facts within petitioner’s knowledge, is lacking in force when it is observed from the record that the appointed attorney was present and representing the defendant on the occasions when he was arraigned, later when he withdrew his pleas of not guilty and at the trial where he was sentenced. Such conclusions unsupported by facts will not suffice. Wilder v. State, Fla.App.1963, 156 So.2d 395; Webster v. State, Fla.App.1963, 156 So.2d 890; Simpson v. State, Fla.App.1964, 164 So.2d 224.
The petitioner’s contention respecting seizure of his property without a search warrant lacks importance here, as proof of guilt was not required because of his guilty pleas. Moreover, as pointed out by the state, matters of admissibility of evidence are more properly a basis for review on appeal. Austin v. State, Fla.App. 1964, 160 So.2d 730, 732.
Affirmed.
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Cited By (11 total)
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Cappetta v. Louie L. Wainwright, 203 So. 2d 609 (Fla. 1967)…64). . State ex rel. Ervin v. Smith, 160 So. 2d 518, 521 (Fla.1964). Accord, Jackson v. State, 166 So. 2d 194 (Fla.App.3rd 1964); Burke v. State, 160 So. 2d 523 (Fla.App.1st 1964). . Warner v. Cochran, 135 So. 2d 421 (Fla.1961); Kirkland v. State, 165 So. 2d 774 (Fla.App.3rd 1964); Ziegler v. State, 180 So. 2d 477 (Fla.App.3rd 1965); Brooks v. State, 188 So. 2d 883 (Fla.App. 4th 1966); Sawyer v. State, 94 Fla. 60, 113 So. 736 (1927); Henderson v. State, 174 So. 2d 73 (Fla.App.3rd 1965). . State v. Barton,…
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Gibson v. State, 173 So. 2d 766 (Fla. 3d DCA 1965)…” to the crime of first degree murder, and entered a plea of “guilty”, with the advice of counsel, to second degree murder. Consequently, this statement was never used against him and proof of guilt was not required. Kirkland v. State, Fla.App.1964, 165 So. 2d 774, 775. In addition, a petition was filed by appellant’s trial counsel in which the trial counsel made a full and complete disclosure as to the reasons for the change of the plea from “not guilty” of murder in the first degree to “guilty” of murder i…
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Joseph v. State, 447 So. 2d 243 (Fla. 3d DCA 1983)…So. 2d 669 (Fla. 3d DCA), cert. denied, 192 So. 2d 485 (Fla.1966); Ziegler v. State, 180 So. 2d 477 (Fla. 3d DCA 1965); Coyner v. State, 177 So. 2d 715, 717 (Fla. 3d DCA 1965); Chayter v. State, 176 So. 2d 382 (Fla. 3d DCA 1965); Kirkland v. State, 165 So. 2d 774 (Fla. 3d DCA 1964); Duncan v. State, 161 So. 2d 718 (Fla. 3d DCA 1964); Austin v. State, 160 So. 2d 730, 732-33 (Fla. 2d DCA), appeal dismissed, 164 So. 2d 579 (Fla.1964).…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simpson v. State, 164 So. 2d 224 (Fla. 3d DCA 1964)
- Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964)
- Wilder v. State, 156 So. 2d 395 (Fla. 1st DCA 1963)
- Webster v. State, 156 So. 2d 890 (Fla. 1st DCA 1963)