NOFFIE QULLER JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a second motion to vacate, reasserting claims already decided, need not be entertained, and a preliminary hearing without counsel is not a basis for constitutional issues.
Appellant was convicted of murder and sentenced to life imprisonment. He filed a motion to vacate the judgment, which was denied and affirmed. He then…
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On March 3, 1950, appellant was indicted for murder in the first degree. He was represented at all critical stages by court-appointed counsel, entered a plea of not guilty, was tried by jury and found guilty with a recommendation of mercy, whereupon he was sentenced to life imprisonment.
Appellant’s former motion under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, to vacate the judgment and sentence was denied and the denial affirmed by this court. See Johnson v. State, 161 So.2d 844 (Fla.App. 1964). On June 28, 1965, appellant filed a second motion to vacate which the trial court denied on June 30, 1965, treating same as a second and successive motion for similar relief. On August 4, 1965, this appeal was filed to review the latter action.
There are no material differences between appellant’s two motions to vacate. This appeal simply reasserts the matters complained of on the former appeal. The trial court was under no duty to entertain a second or successive motion as here filed. See Manning v. State, 167 So.2d 616 (Fla.App.1964).
We take note of the fact that appellant claims he appeared before the committing magistrate without benefit of counsel, that he was without funds to employ counsel, and that the magistrate did not advise him of his right to counsel. A preliminary hearing is not essential to due process and the mere failure to appoint counsel to assist an indigent accused at such hearing is an insufficient basis upon which to raise constitutional issues, especially where as in this case there is no contention that appellant was prejudiced thereby. See Ingrim v. State, 166 So.2d 805 (Fla.App.1964); Webster v. State, 156 So.2d 890 (Fla.App.1963).
Finally, there is no substance to appellant’s mere assertion that his counsel was incompetent. That bare charge is nothing more than a random accusation and a bland conclusion of the pleader which has no force or effect upon the appellate court.
Affirmed.
WIGGINTON, Acting C. J., and STUR-GIS and CARROLL, DONALD K., JJ., concur.
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Boone v. State, 183 So. 2d 869 (Fla. 1st DCA 1966)…he was not advised by his attorney or by any other person of his right of direct appeal from the judgment of conviction. The same is true of his claim that he was not capably represented by his attorney. See this court’s opinion in Johnson v. State, 181 So. 2d 667 (Fla.App.1966). Appellant’s request for a plenary hearing and to be present in person at the hearing are matters falling within the sound discretion of the trial court. Where, as in this case, the motion was disposable [*872] without the necessity…
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Rankin v. State, 197 So. 2d 545 (Fla. 2d DCA 1967)…tate, 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.S.A. ALLEN, C. J., and LILES and PIERCE, JJ-, c…
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Fortin v. State, 203 So. 2d 207 (Fla. 3d DCA 1967)…iency was denied after full evidentiary hearing on the first motion, the defendant was not entitled to reassert that ground or contention in a subsequent motion. Manning v. State, Fla. [*209] App.1964, 167 So. 2d 616; Johnson v. State, Fla.App.1966, 181 So. 2d 667; Hall v. State, Fla.App.1966, 183 So. 2d 277; Colebrook v. State, Fla.App.1966, 191 So. 2d 309. No reversible error having been made to appear, the order appealed from is hereby-affirmed. Affirmed.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Webster v. State, 156 So. 2d 890 (Fla. 1st DCA 1963)
- Ingrim v. State, 166 So. 2d 805 (Fla. 3d DCA 1964)
- Govoni v. Blackwell, 167 So. 2d 616 (Fla. 3d DCA 1964)
- Manning v. State, 167 So. 2d 616 (Fla. 1st DCA 1964)
- Noffie Quller Johnson v. State, 161 So. 2d 844 (Fla. 1st DCA 1964)