LOUIS B. HARPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Louis Harper appealed the denial of his motion to vacate a 1950 armed robbery conviction, arguing he was denied equal protection when the trial court refused to provide a court reporter because he was indigent. The Florida Court of Appeal affirmed, holding that a defendant who fails to appeal his conviction cannot later use collateral attack procedures to challenge the unavailability of a trial transcript.
The court held that collateral attack proceedings cannot be used to retry issues or correct errors reviewable only on direct appeal. Since Harper did not appeal his conviction, he cannot claim on collateral attack that he was denied constitutional rights by the state failing to provide him cost-free tools to which he might have been entitled had he appealed. Therefore, the trial court properly denied the motion without a hearing because it failed to state grounds for relief under the Rule.
“a collateral attack under Rule 1 proceedings may not be used to retry issues or correct errors reviewable only upon direct appeal from the conviction”
Establishes the fundamental principle that collateral attack is not available for errors correctable on direct appeal
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Join FLexlaw to unlock all legal intelligenceIn 1950, Harper was tried for armed robbery, represented by counsel, found guilty, and sentenced to 30 years. A motion for new trial was denied and Ha…
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Defendant Louis B. Harper has appealed an order of the trial court denying his mo*326tion for relief under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
In 1950 Harper entered a plea of not guilty to an information charging him with armed robbery. He was represented by two attorneys at his trial, found guilty and sentenced to 30 years in the state penitentiary. A motion for a new trial filed by defendant’s two attorneys was denied. Defendant did not appeal.
In 1963 defendant filed a motion to vacate his sentence alleging that he was deprived of an opportunity to appeal and thus denied equal protection of law by the trial court’s refusal to furnish an official court reporter to take down testimony of the trial after being advised that defendant was financially unable to employ same. The trial judge denied defendant’s motion to vacate and defendant appealed.
In his motion defendant substantially alleged :
1. He was an indigent at the time of his trial and that fact was made known to the trial judge, who denied his request for a court reporter.
2. At the time of his trial it was not the custom to report all cases as it is today and cases were only reported if the defendant could pay for same.
3. Reversible error occurred at his trial due to certain prejudicial remarks made by the prosecuting attorney to the jury.
4. In June, 1950, following the April 26, 1950 sentencing, defendant by letter requested reduction of his sentence on the grounds that he was innocent and unable to employ counsel for an appeal.
The two primary questions on appeal are:
1.May one who did not appeal his conviction urge the failure of the trial court to have a court reporter present as the basis of a motion under Criminal Procedure Rule No. 1 when defendant requested same?
2. Did the trial court err in denying defendant a hearing on his motion to vacate?
The first question has been settled by Lee v. State1 which based its decision upon two federal cases, Smith v. United States2 and Bowen v. United States.3 These three cases stand for the proposition that a collateral attack under Rule 1 proceedings may not be used to retry issues or correct errors reviewable only upon direct appeal from the conviction.
The United States Supreme Court cases,4 upon which the defendant relies, hold that an indigent defendant when appealing from a judgment of conviction must always have available to him a record of sufficient completeness as may be necessary for adequate consideration of errors assigned. Such record may be a reporter’s transcript, or an alternative method of reporting trial proceedings is sufficient if such method places before the appellate court an equivalent report of the events of the trial from which the appellant’s contentions arise.
Since the appellant here did not appeal, he may not on collateral attack claim that he was denied his constitutional rights by the state not making available to him without cost those tools to which he may have been entitled had he appealed his conviction. Relief under Criminal Procedure Rule No. 1 is available only when the judgment was rendered without jurisdiction, when' the sentence imposed was not authorized by law or was otherwise open to collateral attack or when there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.
*327Defendant’s second point is without merit. Assuming the truth of all allegations, the motion to vacate does not state grounds for relief in a collateral attack. Therefore, no hearing was required.
Affirmed.
STURGIS, C. J., and WIGGINTON and RAWLS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Crusoe v. State, 183 So. 2d 600 (Fla. 2d DCA 1966)…sed by defendant upon a trial of the merits, with the ensuing right of direct appeal from any adverse rulings or verdict, but which cannot be raised on collateral attack by a motion under Criminal Procedure Rule No. 1. Harper v. State, Fla.App.1964, 168 So. 2d 325; Piehl v. State, Fla.App.1965, 173 So. 2d 723; Wilcox v. State, Fla.App.1965, 171 So. 2d 427; Taylor v. State, Fla.App.1965, 171 So. 2d 402; Mason v. State, Fla.App.1964, 167 So. 2d 618; Harris v. State, Fla.App.1964, 167 So. 2d 312; Mitchell v. Sta…
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Swindle v. State, 202 So. 2d 132 (Fla. 3d DCA 1967)…y allegations of fact. Dancy v. State, Fla.App.1965, 175 So. 2d 208; Murray v. State, Fla.App.1965, 175 So. 2d 236. Moreover, such matters were reviewable on appeal. Austin v. State, Fla.App.1964, 160 So. 2d 730, 732; Harper v. State, Fla.App. 1964, 168 So. 2d 325, 326; Brooks v. State, Fla.App.1966, 188 So. 2d 883; Brooks v. State, Fla.App. 1967, 194 So. 2d 303, 304. The Rule 1 motion directed to the conviction and sentence in the case in which the defendant [*133] pleaded guilty failed to present grounds ne…
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State v. Herzig, 208 So. 2d 619 (Fla. 1968)…tate, 190 So. 2d 340 (2d DCA Fla.1966), cert. denied 199 So. 2d 99 (Fla.). It is evident that generally a Rule 1 proceeding may not be used to retry issues and correct errors reviewable only upon direct appeal from a conviction. See Harper v. State, 168 So. 2d 325 (1st DCA Fla.1964), cert. denied 177 So. 2d 15 (Fla.). But the conclusion is inescapable that an appeal from an initial order denying a motion for relief under a true Rule 1 proceeding ostensibly occasions the first appellate review of the merits of…
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
- Draper v. Washington, 372 U.S. 487 (U.S. 1963)
- Hardy v. United States, 375 U.S. 277 (U.S. 1964)
- Sandsbury LEE v. State, 165 So. 2d 443 (Fla. 2d DCA 1964)
- Smith v. United States, 252 F.2d 369 (5th Cir. 1958)
- Bowen v. United States, 260 F.2d 266 (5th Cir. 1958)