PATRICK PETER DEVLIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Patrick Devlin appeals the trial court's denial of his second petition under Criminal Procedure Rule I, which sought relief based on newly discovered evidence, jury charge defects, appellate counsel ineffectiveness, and an allegedly illegal confession. The Florida District Court of Appeal affirmed the denial, holding that most grounds were procedurally improper and the newly discovered evidence—hearsay affidavits that another person fired the fatal shot—was insufficient as a matter of law.
The court affirmed the denial, holding that jury charge and appellate record claims are not proper Rule I grounds and must be raised on direct appeal; the inadequate appellate counsel claim lacked factual support; the Escobedo claim was inapplicable because Devlin's trial predated the effective date of that decision; and the newly discovered evidence—hearsay affidavits—was legally insufficient to warrant a new trial.
“It is immediately apparent that appellant's allegations of an improper and incomplete charge to the jury and an incomplete record on appeal are matters which can be considered only on appeal; therefore, the allegations are not proper grounds for a petition pursuant to Criminal Procedure Rule I.”
Establishes the procedural limitation that certain issues must be raised on direct appeal, not in Rule I collateral relief petitions.
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Join FLexlaw to unlock all legal intelligenceDevlin was convicted by jury of second degree murder and sentenced. His initial appeal to the District Court of Appeal was affirmed. He filed a second…
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In the trial court, the appellant was petitioner in a proceeding pursuant to Criminal Procedure Rule I, F.S.A. ch. 924 Appendix. This appeal is from a summary denial of his petition.
The appellant was informed against for the crime of second degree murder. He pleaded not guilty and was represented by private counsel at the trial. Upon the verdict of the jury, he was adjudged guilty and sentenced. An appeal was taken to this Court and the judgment and sentence were affirmed. See Devlin v. State, Fla.App.1965, 175 So.2d 82. A petition pursuant to Criminal Procedure Rule I was filed in the trial court and denied. Subsequently, the *787appellant filed a second petition in which he alleged the following: (1) newly discovered evidence sufficient to grant a new trial; (2) improper and incomplete charge to the jury; (3) incomplete record-on-appeal; (4) inadequate appellate counsel; and (5) use of an incriminating confession which was obtained in an illegal and unlawful manner. It is from the denial of this petition that the present appeal is taken.
It is immediately apparent that appellant’s allegations of an improper and incomplete charge to the jury and an incomplete record on appeal are matters which can be considered only on appeal; therefore, the allegations are not proper grounds for a petition pursuant to Criminal Procedure Rule I. See Austin v. State, Fla.App.1964, 160 So.2d 730.
Appellant’s allegation of inadequate appellate counsel is a conclusion, and it is not supported by factual allegations sufficient to show that he was deprived of a constitutional right. As such, it was properly denied in the trial court. See Simpson v. State, Fla.App.1964, 164 So.2d 224. See also Bashlor v. Wainwright, Fla.1966, 189 So.2d 800.
The substance of appellant’s petition charging that his confession was obtained in an illegal and unlawful manner was a claim that the confession was obtained in violation of the principles expressed in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Inasmuch as appellant was tried on June 1, 1964, a claim that the principles set forth in Escobedo were violated, because he was not advised of the right to counsel, is not applicable. See Bell v. State, Fla.App.1965, 175 So.2d 80. The Escobedo holding is not available to persons whose trials began prior to June 23, 1964. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
The main thrust of appellant’s second Rule I petition is that there is newly discovered evidence sufficient to grant a new trial. The basis of this claim is two affidavits by fellow convicts which state that Alan Staples, a participant in the affray and also an inmate of the Florida State Prison, stated to the fellow convicts that, he, Staples, fired the fatal shot. These affidavits which are upon hearsay evidence are not sufficient to require a new trial. See Chesser v. State, 92 Fla. 754, 109 So. 906 (1926); Grant v. State, Fla.App.1964, 166 So.2d 503.
Affirmed.
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Reuel Lawson v. State, 215 So. 2d 790 (Fla. 2d DCA 1968)…e jury. Matters involving the giving, or failure to give, instructions to the jury are matters which may be urged only upon direct appeal from the conviction and are not available as grounds for post-conviction relief. Devlin v. State, Fla.App.1966, 192 So. 2d 786; Baxley v. State, Fla.App.1966, 192 So. 2d 510. This appeal was filed by Lawson individually from the State Prison. His court-appointed counsel on the appeal candidly admits the lack of merit herein, for the reason that “the grounds alleged by defe…
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Brown v. State, 227 So. 2d 527 (Fla. 1st DCA 1969)…arlier occasion, Brown v. State, 197 So. 2d 853 (1967). The points asserted in support of appellant’s motion to vacate are without merit. Such matters are not properly within the purview of a motion to vacate judgment and sentence. Devlin v. State, 192 So. 2d 786 (Fla.App.1966). Post-conviction proceedings are generally not a substitute for a timely appeal. Nor do such proceedings have as their purpose a second appeal. There is a significant distinction between the matters which can be considered by an appe…
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O'Fallon v. State, 239 So. 2d 872 (Fla. 2d DCA 1970)…nd inefficiency of counsel relied upon, and the authorities are legion that in such case no relief can be granted. See Steinhauser v. State, Fla.App.1969, 228 So. 2d 446; Ballard v. State, Fla.App.1967, 200 So. 2d 597; Devlin v. State, Fla.App.1966, 192 So. 2d 786; Dozier v. State, Fla.App.1966, 192 So. 2d 506; Smith v. State, Fla.App.1966, 192 So. 2d 41; Plymale v. State, Fla.App.1966, 182 So. 2d 57; State v. Barton, Fla.1967, 194 So. 2d 241. The order appealed is— Affirmed. LILES, A. C. J., and McNULTY,…
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
- Escobedo v. Illinois, 378 U.S. 478 (U.S. 1964)
- Johnson v. New Jersey, 384 U.S. 719 (U.S. 1966)
- Simpson v. State, 164 So. 2d 224 (Fla. 3d DCA 1964)
- Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964)
- Chesser v. State, 92 Fla. 754 (Fla. 1926)
- Devlin v. State, 175 So. 2d 82 (Fla. 3d DCA 1965)
- Hulan Grant v. State, 166 So. 2d 503 (Fla. 2d DCA 1964)
- Bell v. State, 175 So. 2d 80 (Fla. 3d DCA 1965)
- Hobbs v. The Fla. Indus. Comm'n, 189 So. 2d 800 (Fla. 1966)