ERNEST COLE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ernest Cole appealed his guilty plea conviction for robbery on grounds of ineffective assistance of counsel, claiming that substitution of assistant public defenders denied him adequate representation. The Florida appellate court affirmed, finding that Cole failed to demonstrate error and that the record was insufficient to support his allegations.
The appellate court affirmed the conviction, holding that Cole failed to carry his burden of demonstrating that error occurred. The court found that the record was insufficient to support the alleged errors and therefore presumed that the trial court acted properly.
“The meager record before us does not present the facts on which any of the alleged errors are predicated. In the absence of such showing a presumption arises that the trial court acted properly.”
Establishes that the burden is on the appellant to demonstrate error through the record; absent such showing, the trial court's actions are presumed valid.
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Join FLexlaw to unlock all legal intelligenceCole was charged with robbery, initially pleaded not guilty with waiver of jury trial through Assistant Public Defender James Nasel-la at arraignment …
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Appellant was charged with the ■crime of robbery. At arraignment he entered a plea of not guilty; later he changed his plea to that of guilty and waived jury trial. The trial court adjudged him guilty and sentenced him to a term of eight years in the state penitentiary.
This appeal is from the judgment and sentence entered by the criminal court of record pursuant to the defendant’s plea of ■guilty.1 The grounds relied upon for reversal are that the defendant was denied adequate representation by counsel in that the Public Defender who had been appointed to represent him had assigned two different assistant public defenders to handle his case. One of these assistants appeared with him at arraignment and conferred with him at length in preparation of his defense. The other assistant entered the case immediately prior to the time his case was ■called for trial. Appellant argues that this substitution of assistants deprived him of representation by his counsel, and that he was not given an opportunity to secure ■counsel of his own choice.
The record before us shows that the defendant was arraigned on February 27, 1964, pleaded not guilty and waived jury trial through his attorney, James S. Nasel-la, Assistant Public Defender. The record further shows that on April 29, 1964 the ■defendant, through Marco Loffredo, Assistant Public Defender, changed his plea ■of not guilty to that of guilty. He was adjudged guilty and sentenced the same day. There is no showing in the record that the •defendant objected to his representation by a different assistant public defender, nor is there any showing that there was a request for a continuance.
The meager record before us does not present the facts on which any of the alleged errors are predicated. In the absence of such showing a presumption arises that the trial court acted properly.2 Unless an assignment of error is supported by the record it will not be considered on appeal.
Our careful examination of the record on appeal and consideration of the points of law presented by the appellant’s brief leads us to the conclusion that the defendant has failed to carry his burden of making error clearly appear. Therefore, the judgment appealed should be, and it is, affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bankston v. State, 279 So. 2d 326 (Fla. 2d DCA 1973)…ged hearsay testimony was the only testimony which tended to refute his defense. The record on appeal does not reveal that appellant objected to being represented by counsel, or requested other counsel or a continuance; Cole v. State, Fla.App.1965, 172 So. 2d 607; Clayton v. State, Fla.App. 1966, 188 So. 2d 395. Success is not the measure of counsel’s effectiveness, and mere errors of judgment as disclosed by subsequent events are not sufficient to establish ineffective assistance of counsel; United States…
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Fisher v. State, 239 So. 2d 863 (Fla. 3d DCA 1970)…blic defender who represented him at the trial was not the same as the assistant public defender who had acted in his behalf in the proceedings prior to trial. We reject that argument of the appellant on the authority of Cole v. State, Fla.App.1965, 172 So. 2d 607, 608. The ground there asserted is not a basis for claiming error in the absence of a showing on the record of timely objection by or on behalf of the defendant to having a trial proceed with an appointed attorney different from that who had represe…
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Ramey v. State, 199 So. 2d 104 (Fla. 2d DCA 1967)…Gibson), and it will be observed that, not only were the observations made in each case strictly obiter, but in each case the appeal was disposed of on the full merits involved. Another case, not otherwise mentioned, is Cole v. State, Fla.App.1965, 172 So. 2d 607, wherein the defendant Cole had pleaded guilty to robbery, was adjudged guilty, and sentenced to eight years imprisonment. The judgment of conviction was appealed and the 3rd District Court reviewed upon the merits each contention raised on the appe…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Faulkner v. State, 146 Fla. 769 (Fla. 1941)
- Aris v. State, 162 So. 2d 670 (Fla. 1st DCA 1964)