JOSEPH BARTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a motion to vacate judgment is not the proper vehicle to challenge the sufficiency of the evidence, and allegations must be factual, not mere legal conclusions.
Appellant was convicted of assault with intent to commit robbery and sentenced. He filed two motions to vacate the judgment and sentence, alleging ins…
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The appellant was convicted of assault with intent to commit robbery, and on May 28, 1963 was sentenced to serve seven years in a state institution. No appeal was filed from this conviction.
On May IS, 1964 appellant filed a motion to vacate the judgment and sentence, alleging in essence that there was insufficient evidence to sustain the conviction. The trial court, after a hearing with the appellant present, denied the petition on July 31, 1964. On September 14, 1964, a second petition was filed, alleging essentially the same matters set forth in the first petition. On September 22, 1964, an order was entered denying the second petition. No appeal was filed from this order.
The appellant has appealed the order dated July 31, 1964, denying his petition to vacate the judgment and sentence.
This court, in Harris v. State, Fla.App.1964, 167 So.2d 312, held that the contention that the evidence is insufficient to warrant conviction was a matter to be *606presented on an appeal and not by motion to vacate under Criminal Procedure Rule Number One, F.S.A. ch. 924 Appendix. See Austin v. State, Fla.App.1964, 160 So.2d 730.
In addition, the allegations contained in the petition of May 15, 1964, were not factual, but were only conclusions of law and are therefore insufficient to support a motion to vacate the judgment. See Adams v. State, Fla.App.1964, 164 So.2d 35; Dias v. State, Fla.App.1963, 158 So.2d 766.
For the reasons stated, the action of the trial court is
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964)
- Dias v. State, 158 So. 2d 766 (Fla. 2d DCA 1963)
- Harris v. State, 167 So. 2d 312 (Fla. 3d DCA 1964)
- Adams v. State, 164 So. 2d 35 (Fla. 2d DCA 1964)