LEE FRANKLIN SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a motion for relief under Criminal Procedure Rule No. 1 was properly summarily denied when the grounds raised had already been judicially determined to be without merit.
Defendant, convicted of rape, filed a motion for relief alleging his attorneys prevented him from testifying. This identical allegation was previously…
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This is an appeal from a summary denial of the defendant’s motion for relief brought pursuant to Criminal Procedure Rule No. 1, F.S.A. Chapter 924 Appendix.
Defendant was tried and convicted of rape pursuant to a jury verdict, for which he was sentenced to ninety-nine years in the state penitentiary. The conviction and sentence were affirmed on appeal. Defendant filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida, in which he alleged, inter alia, that his attorney refused to permit him to testify in his own behalf. The petition was denied when the court found from the record and affidavits that defendant’s court appointed counsel was quite competent and that defendant voluntarily elected not to take the stand. Thereafter, a petition for rehearing was denied. A petition to the United States Court of Appeals for the Fifth Circuit considered to be an application for a certificate of probable cause for leave to appeal was also denied.
Defendant then filed a pleading pursuant to Criminal Procedure Rule No. 1 alleging, inter alia, that his court appointed attorneys prevented him from testifying in his own behalf over his objection- — the identical allegation presented in defendant’s federal habeas corpus petition. It is this point which defendant preserved on appeal.
The court below did not err in summarily denying defendant’s motion where the identical grounds had been already judicially determined to be wholly without merit.1
However, the lower court determined the issue on its merits, and there is no error in a summary denial of this issue on its merits. With possible exceptions, the failure of counsel to call a witness on behalf of the defense is not a ground for collateral attack.2 We find that defendant’s motion contains no allegation which constitutes an exception to this general rule.
Accordingly the order appealed is affirmed.
Affirmed.
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Carlton Lee Fields v. State, 202 So. 2d 226 (Fla. 3d DCA 1967)….A. ch. 924 Appendix. It affirmatively appears from the record presented that the petition was properly denied by the trial court because the court will not consider successive petitions based upon the same ground. See Smith v. State, Fla. App.1965, 180 So. 2d 675; Whitney v. State, Fla.App. 1966, 184 So. 2d 207.…
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Rankin v. State, 197 So. 2d 545 (Fla. 2d DCA 1967)…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; Cole v. State. Fla.App.1966, 181 So. 2d 698; Brown v. State, Fla.App.1964, 164 So. 2d 34; Smith v. State, Fla.App.1965, 180 So. 2d 675; Johnson v. State, Fla.App.1966, 181 So. 2d 667, and Ogilvie v. State, Fla.App.1966, 181 So. 2d 710. We find that oral argument would serve no useful purpose and it is therefore dispensed with pursuant to Florida Appellate Rule 3.10, subd. e, 31 F.…
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Earnest Byrd, Jr. v. State, 220 So. 2d 14 (Fla. 3d DCA 1969)…omplains 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 v. State, Fla.App.1964, 166 So. 2d 194; Smith v. State, Fla.App.1965, 180 So. 2d 675. Therefore, no error appearing in the convictions and judgments here under review, they are hereby affirmed. Affirmed. . The record indicates that he had two successive private counsel in the trial court. Our files indicate that after the public…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simpson v. State, 164 So. 2d 224 (Fla. 3d DCA 1964)
- Brookins v. State, 174 So. 2d 578 (Fla. 3d DCA 1965)
- Morgan Simpson v. State, 165 So. 2d 195 (Fla. 2d DCA 1964)