PAUL MICHAEL STRATOS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that while most grounds for relief were meritless, the allegation that the appellant was denied witnesses due to counsel's statement regarding costs warrants further examination.
The appellant sought relief under a criminal procedure rule, alleging numerous grounds. One ground asserted that his court-appointed counsel stated th…
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This is an appeal from an order denying a petition for relief under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix.
The petition contained numerous grounds, all of which we find to be without merit, except that which alleges that the appellant was denied witnesses because of a statement by his court-appointed counsel that the court would not pay to have witnesses summoned for the defense. It has been held that the failure of counsel to call witnesses on behalf of the defense is a matter of personal judgment exercised by defense counsel, and is not a ground for collateral attack. See: Simpson v. State, Fla.App.1964, 164 So.2d 224; Jackson v. State, Fla.App.1964, 166 So.2d 195; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787; Frand v. United States, 10th Cir.1962, 301 F.2d 102, 104. However, in the instant case, the appellant [by his petition] avers that he was denied the assistance of witnesses upon the statement of his counsel that the court would not pay the costs of summoning same, which would be contrary to § 932.37, Fla.Stat., F.S.A.
Therefore, this matter is returned to the trial court solely to reexamine this allegation of the petition. The trial court’s action in denying all other relief sought by the said petition be and the same is hereby affirmed.
Affirmed in part; reversed in part and remanded with directions.
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Brookins v. State, 174 So. 2d 578 (Fla. 3d DCA 1965)…v. State, Fla.App.1964, 166 So. 2d 194; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F. 2d 787. And, the allegations in the appellant’s petition do not constitute a possible exception to that rule as set out in Stratos v. State, Fla.App.1964, 167 So. 2d 771. Therefore, the action of the trial court here under review is hereby affirmed. Affirmed.…
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Shellie Wilson v. State, 220 So. 2d 426 (Fla. 3d DCA 1969)…ndant from calling a material witness (as opposed 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,…
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Wade v. State, 175 So. 2d 572 (Fla. 2d DCA 1965)…[sic] and was denided [sic] to obtain witnesses in behalf of the petitioner.” and that: “Petitioner was denied the right of witness [sic] at the prelimnary [sic] hearing. * * * ” The petitioner relies primarily on Stratos v. State, Fla.App.1964, 167 So. 2d 771 as support for the contention that he is at least entitled to a hearing on his petition. The petitioner in that case alleged that he had been denied assistance of witnesses in [*573] view of a statement by his court-appointed counsel that the court…
Previewing 3 of 5 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)
- Mitchell v. United States, 259 F.2d 787 (D.C. Cir. 1958)
- Frand v. United States, 301 F.2d 102 (10th Cir. 1962)