ROBERT CAMERON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cameron appealed the denial of his second motion to vacate sentence under Florida Criminal Procedure Rule One. The court affirmed the denial, holding that he failed to establish error in the preliminary hearing or police conduct, and that Miranda rights do not apply retroactively to cases tried before Miranda v. Arizona was decided.
The court affirmed the denial of the motion, holding that the lack of counsel at a preliminary hearing does not itself render a judgment vulnerable to collateral attack, and that no prejudicial error occurred. Additionally, Miranda protections do not apply retroactively to cases tried before the Miranda decision.
“Under Criminal Procedure Rule One a court is not required to entertain a second or successive motion for relief when a prior motion for similar relief, based on substantially the same grounds, has been denied.”
Establishes the court's authority to decline to consider successive motions based on substantially similar grounds.
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Join FLexlaw to unlock all legal intelligenceCameron was arrested and faced two charges: assault with intent to commit murder in the first degree and aggravated assault. He was represented by a p…
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Appellant has filed this appeal from a denial of a motion to vacate sentence filed pursuant to Criminal Procedure Rule One, F.S.A. ch. 924 Appendix. Appellant was arrested and two informations were filed against him. One charged him with assault with intent to commit murder in the first degree and the other charged him with aggravated assault.
A hearing was held before the circuit judge, at which time the State agreed to accept a plea of guilty to the offense of aggravated assault. The appellant was represented by the public defender at this hearing and entered a plea of guilty. The court thereupon adjudicated appellant guilty of aggravated assault and sentenced him to three years imprisonment at hard, labor, with credit for time served in jail.
Subsequently the appellant filed his first motion to vacate judgment and sentence under Criminal Procedure Rule One. This motion was denied. No appeal was taken from the denial of this motion, so the allegations contained in this motion will not be considered in this appeal.
Some time later the appellant filed a second motion to vacate judgment and sentence under Criminal Procedure Rule One. The two grounds asserted in this motion are that the appellant was not represented by counsel at his preliminary hearing and that the police failed to advise appellant that he could have counsel and that he did not have to make a statement without counsel. This motion was denied and the appellant brings this present appeal.
Under Criminal Procedure Rule One .a court is not required to entertain a second or successive motion for relief when a prior motion for similar relief, based on substantially the same grounds, has been denied. Boone v. State, Fla.App.1966, 183 So.2d 869; and Coleman v. State, Fla.App. 1966, 183 So.2d 714. Appellant’s second motion contains substantially the same grounds as were contained in his first motion. Although we are not required to consider this second motion, we will make some short comment about the allegations contained therein.
The mere fact that an accused is not represented by counsel at a preliminary hearing is, in and of itself, insufficient to render the accused’s judgment and sentence vulnerable to collateral attack under Criminal Procedure Rule One. Montgomery v. State, Fla.1965, 176 So.2d 331; and Mathis v. State, Fla.App. 1964, 168 So.2d 77. There is no showing that the preliminary hearing was a critical stage of the proceedings against appellant, or that any prejudicial error occurred at the preliminary hearing. Thus the fact that appellant was without counsel at the hearing was not error.
Appellant alleges that he should have been advised that he did not have to make *184any statement outside the presence of counsel. However, there is no indication in the record that appellant made any statement or, if he did make a statement, that it was used to his prejudice. Clearly this cannot constitute error.
The other allegations of error claimed by the appellant are violations of the guidelines set forth by the United States Supreme Court in the case of Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. However, the Miranda case has no application to appellant’s case since his trial was held prior to the Miranda decision. Under the case of Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the United States Supreme Court held that the principles of the Miranda case would not be retroactive.
Finding no error in the record, the order appealed is affirmed.
Affirmed.
SHANNON, Acting C. J., and PIERCE and HOBSON, JJ., concur.
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Citator
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State v. Herzig, 208 So. 2d 619 (Fla. 1968)…rt either at the trial or appellate level need not entertain a second motion or appeal for relief when a prior motion or appeal for similar relief, based on substantially the same grounds, has been conclusively and properly denied. Cameron v. State, 196 So. 2d 182 (2d DCA Fla.1967). In these and similar instances the review afforded by the appellate court does not involve the merits of a new and genuine claim challenging a criminal judgment and sentence and the same may be summarily dismissed out of hand as s…
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Gysin v. State, 205 So. 2d 542 (Fla. 3d DCA 1968)…ected to prosecute this appeal in proper person. We find no error in the order under review. The second petition sought relief upon the same grounds urged in the first. Coleman v. State, Fla.App.1966, 183 So. 2d 714; Cameron v. State, Fla.App.1967, 196 So. 2d 182; Wells v. State, Fla.App.1967, 197 So. 2d 20. And, even if the court had a right to proceed under the second petition and the contents thereof were taken as true, the grounds urged were not sufficient for a collateral attack on the verdict, judgment…
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Herstree Tyrone Grant v. State, 224 So. 2d 721 (Fla. 2d DCA 1969)…nds will not be considered. Fields v. State, Fla.App.1967, 202 So. 2d 226; Richardson v. State, Fla.App.1967, 202 So. 2d 137; Weeks v. State, Fla.App.1967, 201 So. 2d 764; Wells v. State, Fla.App.1967, 197 So. 2d 20; Cameron v. State, Fla.App. 1967, 196 So. 2d 182; Mitchell v. State, Fla. App.1967, 203 So. 2d 676, cert. den. 392 U.S. 913, 88 S.Ct. 2073, 20 L.Ed.2d 1371. The trial Court properly denied the second petition to vacate and such order is hereby affirmed. Affirmed. HOBSON, C. J., concurs. MANN,…
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
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- Johnson v. New Jersey, 384 U.S. 719 (U.S. 1966)
- Montgomery v. State, 176 So. 2d 331 (Fla. 1965)
- Boone v. State, 183 So. 2d 869 (Fla. 1st DCA 1966)
- Rossie D. Coleman v. State, 183 So. 2d 714 (Fla. 1st DCA 1966)
- Mathis v. State, 168 So. 2d 77 (Fla. 2d DCA 1964)