JAMES DOUGLAS BROOKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Douglas Brookins appealed the summary denial of his habeas corpus petition challenging his second-degree murder conviction and 20-year sentence. The court affirmed the denial, holding that his allegations of inadequate counsel at the preliminary hearing, illegal arrest, and failure to call defense witnesses were insufficient to support collateral attack on his conviction.
The court held that none of Brookins's allegations provided valid grounds for vacating his conviction: (1) the claim of inadequate representation at the preliminary hearing was a naked conclusion without factual support and, absent prejudicial harm, lack of counsel at a preliminary hearing does not deny due process; (2) the allegation of illegal arrest failed to show how it deprived him of a fair trial; and (3) counsel's decision not to call witnesses is a matter of personal judgment and not grounds for collateral attack.
“The appellant's allegation that he was not competently represented by counsel at the preliminary hearing is nothing more than a naked conclusion, without any supporting allegations of fact. Thus, it does not constitute a ground for vacating the conviction and sentence.”
Establishes the standard that collateral attacks require factual support, not mere conclusions
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Join FLexlaw to unlock all legal intelligenceBrookins was tried and convicted of second-degree murder by jury verdict and sentenced to 20 years in the State Penitentiary. He did not appeal the or…
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In the instant case, the appellant - was tried and convicted of second degree murder pursuant to a jury verdict, for which he was sentenced to 20 years in the State Penitentiary. No appeal was taken from that conviction and sentence, but the instant appeal is taken from a summary denial of a petition for writ of habeas corpus which the trial court treated as a petition to vacate, pursuant to Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix.
By his petition, the appellant alleged the following: (1) The appellant’s attorney did not adequately represept him at the pre-, liminary hearing and/or he had no counsel at the preliminary hearing. (2) The arrest of the appellant was illegal in that it was perfected without a warrant. (3) The appellant’s counsel did not subpoena defense witnesses.
The appellant’s allegation that he was not competently represented by counsel at the preliminary hearing is nothing more than a naked conclusion, without any supporting allegations of fact. Thus, it does not constitute a ground for vacating the conviction and sentence. See: Wooten v. State, Fla.App.1964, 163 So.2d 305; Snow v. State, Fla.App. 1965, 171 So.2d 557. Furthermore, in view of the fact that in the absence of a showing of prejudicial harm a preliminary hearing is not an essential step in a criminal proceeding [see: Baugus v. State, Fla.1962, 141 So.2d 264, cert. den 83 S.Ct. 153, 371 U.S. 879, 9 L.Ed.2d 117; Wooten v. State, supra; Hoffman v. State, Fla.App.1964, 169 So.2d 38], lack of counsel at a preliminary hearing does not constitute a denial of due process of law. Webster v. State, Fla.App. 1963, 156 So.2d 890; Sam v. State, Fla.App.1964, 167 So.2d 258.
As to the appellant’s second allegation, the appellant has failed to show in what manner the alleged illegality of his arrest deprived him of a fair trial. Thus, the allegation is insufficient to sustain a *580collateral attack on the conviction and sentence. See: Marti v. State, Fla.App.1964, 163 So.2d 506; Smith v. State, Fla.App.1964, 168 So.2d 585.
Lastly, 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 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Whitney v. State, 184 So. 2d 207 (Fla. 3d DCA 1966)…1639, 6 L.Ed. 2d 751; Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663] are not applicable. As to the fourth reason, failure of counsel to call witnesses, see: Simpson v. State, supra; also Brookins v. State, Fla. App.1965, 174 So. 2d 578. Certainly this matter was the subject of attention by the Supreme Court of Florida in the habeas corpus proceeding, because although not specifically raised the court said the following at 152 So. 2d at page 730 of that opinion [Whitney v. Cochran,…
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Cole v. State, 181 So. 2d 698 (Fla. 3d DCA 1966)…Reversed and remanded. . Cole v. State, Fla.App.1965, 172 So. 2d 898. . Kemp v. State, Fla.App.1965, 177 So. 2d 58; Wooten v. State, Fla.App.1964, 163 So. 2d 305. . Gillyard v. State, Fla.App.1965, 175 So. 2d 798; Brookins v. State, Fla.App.1965, 174 So. 2d 578. . Mulvey v. State, Fla.1949, 41 So. 2d 156; Lowman v. State, 80 Fla. 18, 85 So. 160 (1920). . Graham v. State, Fla.App.1964, 160 So. 2d 717. . Wilson v. State, 212 Ga. 73, 90 S.E. 2d 557 (1953). . Harper v. State, Fla.App.1964, 168 So. 2d 325.…
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Brookins v. State, 179 So. 2d 212 (Fla. 1965)…Certiorari denied without opinion. 174 So. 2d 578.…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Simpson v. State, 164 So. 2d 224 (Fla. 3d DCA 1964)
- Mitchell v. United States, 259 F.2d 787 (D.C. Cir. 1958)
- Baugus v. State, 141 So. 2d 264 (Fla. 1962)
- Jackson v. State, 166 So. 2d 194 (Fla. 3d DCA 1964)
- Webster v. State, 156 So. 2d 890 (Fla. 1st DCA 1963)
- Marti v. State, 163 So. 2d 506 (Fla. 3d DCA 1964)
- Wooten v. State, 163 So. 2d 305 (Fla. 3d DCA 1964)
- Erwin v. Erwin, 167 So. 2d 258 (Fla. 2d DCA 1964)
- Sawyer v. United States, 371 U.S. 879 (U.S. 1962)
- Bagley v. Rhay, 371 U.S. 879 (U.S. 1962)