ELLIS A. TODD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the denial of post-conviction relief to a defendant convicted of assault with a deadly weapon, finding no hearing was necessary.
The court held that the defendant was not entitled to post-conviction relief and that no hearing was necessary based on the motion, files, and record.
The defendant was convicted of assault with a deadly weapon and sought post-conviction relief, which was denied without a hearing. He was represented …
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This is an appeal by the defendant Ellis A. Todd from an order denying post-conviction relief under Criminal Procedure Rule One, F.S.A. ch. 924 Appendix, without a hearing.
Todd was convicted by a jury of assault with a deadly weapon; to-wit, shooting one Franklin D. Clark with a pistol.
Defendant was arraigned in open court and pleaded not guilty. He was represented by counsel of his own selection, both at the arraignment and trial. After the trial but before judgment and sentence, his counsel was appointed Assistant State Attorney. At the time the sentence was pronounced, defendant was represented by another counsel of his own selection. The record shows that he was advised that he could request the disqualification of the State Attorney or any of his Assistants to represent the State at the time the judgment was pronounced and sentence imposed. After a conference with his attorney he waived objection to the State Attorney’s office representing the State at said proceeding. The record further shows that the defendant had a long conference with the attorney selected and retained for him by his family the night before he was sentenced. It has been held that where a defendant retains his own counsel he waives the right to question the competency of that counsel. Everett v. State, Fla.App.1964, 161 So.2d 714.
A careful review of the motion, files and record, including the transcript of the testimony at the time of the sentencing of the defendant, shows conclusively that the prisoner was entitled to no relief and, therefore, no hearing was necessary. Wade v. State, Fla.App.1965, 177 So.2d 695, Case No. 5690, Opinion filed June 3, 1965.
Affirmed.
SMITH, C. J., and SHANNON, J., concur.
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Vagner v. Louie L. Wainwright, 398 So. 2d 448 (Fla. 1981)…appetta did not discuss the rationale for the rule there embraced; the holding derives from a number of pre-Cappetta decisions. Williams v. State, 177 So. 2d 736 (Fla. 1st DCA 1965); Coyner v. State, 177 So. 2d 715 (Fla. 3d DCA 1965); Todd v. State, 176 So. 2d 344 (Fla. 2d DCA 1965); Amaral v. State, 171 So. 2d 549 (Fla. 3d DCA 1965); Simpson v. State, 164 So. 2d 224 (Fla. 3d DCA 1964); Everett v. State, 161 So. 2d 714 (Fla. 3d DCA 1964). In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), t…
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Young v. State, 177 So. 2d 345 (Fla. 2d DCA 1965)…specific prejudicial acts on the part of the prosecutor. State v. Detroit Motors, 1960, 62 N.J.Super. 386, 163 A. 2d 227; and State v. Burns, supra. The Florida decision closest in point is, this court’s holding in Todd v. State, Fla. App. 2, 1965, 176 So. 2d 344. (Filed June 11, 1965). In Todd the defendant was represented by counsel of his own selection at arraignment and trial. After the trial, but before judgment and sentence, Todd’s counsel was appointed assistant state attorney. [*347] We held that the…
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Earnest Byrd, Jr. v. State, 220 So. 2d 14 (Fla. 3d DCA 1969)…complaints of ineffective assistance of counsel will not be received on appeal wherein such counsel was privately retained. Everett v. State, Fla. App.1964, 161 So. 2d 714; Amaral v. State, Fla.App.1965, 171 So. 2d 549; Todd v. State, Fla.App.1965, 176 So. 2d 344; Coyner v. State, Fla.App.1965, 177 So. 2d 715. The appellant also complains that his counsel failed to call witnesses for his defense and this denied him a fair trial. This is without merit. Simpson v. State, Fla.App.1964, 164 So. 2d 224; Jackson…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Everett v. State, 161 So. 2d 714 (Fla. 3d DCA 1964)
- Wade v. State, 177 So. 2d 695 (Fla. 2d DCA 1965)