JESSE JAMES JACKSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of a collateral attack on convictions, finding that contentions regarding denial of witnesses, insufficient evidence, improper prosecutorial remarks, and improperly introduced evidence were either insufficient for a Rule 1 petition or should have been raised on direct appeal.
The court held that contentions concerning the denial of witnesses, insufficient evidence, improper prosecutorial remarks, and improperly introduced evidence were either insufficient for a Rule 1 petition or were matters reviewable on direct appeal and thus not grounds for collateral attack.
A state prisoner collaterally attacked his robbery and assault convictions under Criminal Procedure Rule No. 1, raising several contentions including …
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The petitioner while confined in the state penitentiary collaterally attacked the judgments under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. He had been adjudged guilty of robbery and of assault with intent to commit first degree murder with a firearm, after pleading not guilty and being tried without a jury. The sentences, 10 years for the robbery and 20 years on the assault with intent to murder, were made to run concurrently. There were later adjustments in the sentences but the terms remained approximately the same.
The contentions presented here are (1) that petitioner was denied the right to secure witnesses whose names he furnished to the public defender who then refused to subpoena them; (2) that the evidence was insufficient to support the judgments; (3) that he was in effect denied the right of appeal when the public defender’s office, who represented him, refused -to take an appeal from his conviction when the petitioner through deficiencies in education and lack of knowledge and procedure was unable to take the appeal through his own efforts, and could not take it otherwise because insolvent; (4) that he was adversely prejudiced by improper remarks of the prosecuting attorney not eradicable by court instructions; (5) that evidence was improperly introduced against him; 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 or *196witnesses whose names he furnished to his attorney, the public defender, were not supplied through refusal or neglect of his lawyer to obtain them. That amounts to a contention of improper handling of his case by his lawyer. As such, the contention was insufficient in a petition under Criminal Procedure Rule No. 1. For example, the incident was not shown to be outside the range of judgment of counsel. See Webster v. State, Fla.App.1963, 156 So.2d 890; Simpson v. State, Fla.App.1964, 164 So.2d 224. The record refutes the contention of use of a confession.
The remaining contentions listed above (other than that dealing with taking an appeal) concern matters which were reviewable on appeal. When an appeal is deliberately bypassed, such action can be conclusive and a basis for rejecting matters properly presentable for review on appeal, when they are proffered in a motion under Criminal Procedure Rule No. 1. But here the petitioner contends he desired to appeal but was prevented from taking one through insolvency, his personal inability, and refusal of the public defender to prosecute an appeal on his behalf. In effect at the time was Chapter 30143, Laws of Florida 1955, under which a public defender was provided for in Dade County with prescribed duties which included “prosecution of appeals, if the same should be.”
Inasmuch as it is alleged that appeal was not deliberately bypassed it would be inappropriate to reject as having been waived through non-appeal those matters which more properly could have been reviewed on appeal, and which, in the absence of such an appeal, have been offered here as a basis for relief under Criminal Procedure Rule No. 1. See United States v. Winstead, D.C.N.D.Cal.1964, 226 F.Supp. 1010, 1013, and cases cited there.
This petition under Criminal Procedure Rule No. 1 was denied by the trial court without formal hearing. For the reasons stated we are of the opinion that the petitioner was entitled to hearing on the petition. Whereupon, the order dismissing the petition is reversed and the cause is remanded to the trial court with directions to proceed with a formal hearing as provided for in the rule. If the trial court concludes, on hearing with reference to the petitioner’s claim relating to appeal, that an appeal was not omitted under circumstances such as to amount to intentional relinquishment or an abandonment of the right to appeal, and that petitioner desired to appeal and was thwarted as he alleges, then the trial court may again consider (as on a delayed motion for new trial) the other listed contentions relating to evidentiary matters and incidents at the trial, and rule thereon as the merits of the several contentions may require.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (26 total)
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Cappetta v. Louie L. Wainwright, 203 So. 2d 609 (Fla. 1967)…rit of habeas corpus is discharged. It is so ordered. THOMAS, ROBERTS, DREW and ERVIN, JJ., concur. . Cappetta v. State, 162 So. 2d 309 (Fla.App.3rd 1964). . 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 S…
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Nelson v. State, 208 So. 2d 506 (Fla. 4th DCA 1968)…f relief grantable under Section 2255 or in habeas corpus is not to be diminished by failure to appeal, but neither is it to be increased.” For holdings to the contrary, Coward v. State, Fla.App.1967, 202 So. 2d 778, Jackson v. State, Fla.App.1964, 166 So. 2d 194, Hinton v. State, Fla.App.1965, 177 So. 2d 522. [*516] As stated in Informal Opinion No. 955 (July 29, 1967) of the Standing Committee on Professional Ethics of the American Bar Association on the question of the obligation to take Criminal Appeals…
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Simpson v. State, 211 So. 2d 862 (Fla. 3d DCA 1968)…urts, i. e., a denial of a right to appeal or move for a new trial, when properly-raised. See Criminal Procedure Rule No. One; Henderson v. State, Fla.App.1965, 174 So. 2d 73; Indem. Fla.App.1966, 183 So. 2d 872; and Jackson v. State, Fla.App. 1964, 166 So. 2d 194; Indem. Fla.App.1965, 177 So. 2d 353; Tolar v. State, Fla.App. 1967, 196 So. 2d 1; Nelson v. State, Fla.App. 1968, 208 So. 2d 506. The matters relied upon by the federal courts had never been raised or alleged by Simpson in any Florida trial or appe…
Previewing 3 of 26 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)
- Webster v. State, 156 So. 2d 890 (Fla. 1st DCA 1963)
- Byers v. State, 163 So. 2d 57 (Fla. 3d DCA 1964)