DAVID CHARLES SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a motion for relief under Criminal Procedure Rule I cannot be granted for prior convictions if the appellant is no longer in custody, and claims of prejudice from lack of preliminary hearing or ineffective assistance of counsel require specific allegations of harm.
Appellant sought relief from three prior convictions and sentences. Two of the sentences had already been served, and the appellant was released. The …
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This is an appeal from an order denying the appellant’s motion for relief pursuant to Criminal Procedure Rule I, F.S.A. ch. 924 Appendix. The motion claimed relief on three sepai'ate convictions in the Criminal Court of Record in and for Dade County. The judgments and scntences'on which relief was requested are:
1. Case No. 8799; Breaking and entering a dwelling house with intent to commit grand larceny; sentenced January 9, 1941 to 5 years to begin upon expiration of a previous sentence. Appellant was released under this sentence on July 1, 1943.
2. Case No. 60-1S00; Breaking and entering a church building with intent to commit petit larceny; sentenced on April 8, 1960 to 18 months. Appellant was released under this sentence on May 19, 1961.
3. Case No.. 63-8957; Breaking and entering an automobile with intent to commit petit larceny; sentenced December 26, 1963 to 4 years. Appellant is presently serving this sentence.
It is immediately apparent that no relief may be granted as to Cases No. 8799 and No. 60-1800, because appellant is not in custody under these sentences. Young v. State, Fla.App.1964, 167 So.2d 622.
As to Case No. 63-8957, appellant alleges, (1) that he was not given a preliminary hearing, and (2) that the Public Defender did not properly defend him. It has often been pointed out that the failure to conduct a preliminary hearing is not grounds for relief under Criminal Procedure Rule I unless the movant specifies how he was prejudiced by this failure. No prejudice is alleged in the motion. Appellant’s allegation that the attorney assigned to him was not industrious is likewise insufficient. This is especially true in view of the failure to allege how a more industrious counsel could have effected a different judgment.
Affirmed.
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Reuel Lawson v. State, 215 So. 2d 790 (Fla. 2d DCA 1968)…use he was not taken before a magistrate upon his arrest. Therefore post-conviction relief under the Rule is not available. Wallace v. State, Fla.App.1966, 184 So. 2d 443; Murray v. State, Fla.App. 1965, 172 So. 2d 487; Smith v. State, Fla.App.1965, 175 So. 2d 243; Carey v. State, Fla.App.1965, 176 So. 2d 603; Blunt v. State, Fla.App.1967, 203 So. 2d 49. 2. Refusal of counsel at line-up. The U. S. Supreme Court, in Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and in United St…
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Potts v. State, 242 So. 2d 729 (Fla. 2d DCA 1971)…egations of fact must be so strong as to show that such alleged incompetency of counsel made the trial a mockery or a farce. Plymale v. State, Fla.App.1966, 182 So. 2d 57; Coleman v. State, Fla.App.1965, 172 So. 2d 854; Smith v. State, Fla.App.1965, 175 So. 2d 243; Wade v. State, Fla.App.1965, 177 So. 2d 695; Crusoe v. State, Fla.App.1966, 183 So. 2d 600. The trial Court is not required to have an evidentiary hearing upon such petition for relief when the allegations of the petition itself are not factually…
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Meinsen v. State, 240 So. 2d 188 (Fla. 2d DCA 1970)…te, Fla.App.1967, 167 So. 2d 258; Taylor v. State, Fla.App.1965, 171 So. 2d 402; Coleman v. State, Fla.App.1965, 172 So. 2d 854; Miles v. State, Fla.App.1965, 174 So. 2d 576; Wade v. State, Fla.App.1965, 177 So. 2d 695; Smith v. State, Fla.App.1965, 175 So. 2d 243. In the case sub judice, we hold that the allegations of the petition for post-conviction relief did not in any sense show that Meinsen’s trial was a mockery or farce, or even that his counsel was necessarily incompetent. Trial Judges can usually b…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Young v. State, 167 So. 2d 622 (Fla. 1st DCA 1964)