GERALD SWINDLE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gerald Swindle appealed orders denying two petitions for post-conviction relief under Criminal Procedure Rule 1. He was convicted of larceny in one case and pleaded guilty in another, receiving concurrent five-year sentences. The court affirmed the denial of both petitions, finding no reversible error and no grounds for relief.
The trial court did not err in denying the petitions. Challenges to the quality of private counsel representation do not provide grounds for Rule 1 relief, and claims about trial matters must be factually alleged rather than merely stated as conclusions, and are reviewable on direct appeal.
“His present challenge of the quality of that representation is not a basis for relief under Rule 1.”
Establishes that ineffective assistance of counsel claims cannot be raised in Rule 1 proceedings when the defendant was represented by private counsel of his choice.
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Join FLexlaw to unlock all legal intelligenceSwindle was charged with two separate counts of automobile larceny. He pleaded not guilty at arraignment. He was tried and convicted on one count, rec…
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By this appeal reversal is sought of orders of the trial court summarily denying two petitions for relief under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix. The appellant was charged with separate crimes of larceny of an automobile in two informations. When arraigned he pleaded not guilty. Trial upon one of the informations resulted in his conviction and a sentence to confinement in the state penitentiary for five years. Thereafter he changed his plea to guilty to the other charge, was adjudged guilty and was sentenced to a like period of confinement, to be served concurrently. While so confined appellant filed motions in each of the cases under Rule 1. We have considered appellant’s contentions in the light of the record and briefs and find no reversible error. In the proceedings and trial in the court below the defendant was represented by private counsel of his choice. His present challenge of the quality of that representation is not a basis for relief under Rule 1. Williams v. State, Fla.App. 1964, 167 So.2d 795; Messer v. State, Fla.App. 1964, 169 So.2d 378. As to the case which was tried, the contentions in the motion relating to matters occurring at trial were stated as conclusions not supported by allegations of fact. Dancy v. State, Fla.App.1965, 175 So.2d 208; Murray v. State, Fla.App.1965, 175 So.2d 236. Moreover, such matters were reviewable on appeal. Austin v. State, Fla.App.1964, 160 So.2d 730, 732; Harper v. State, Fla.App. 1964, 168 So.2d 325, 326; Brooks v. State, Fla.App.1966, 188 So.2d 883; Brooks v. State, Fla.App. 1967, 194 So.2d 303, 304. The Rule 1 motion directed to the conviction and sentence in the case in which the defendant *133pleaded guilty failed to present grounds necessitating evidentiary hearing, and the trial judge correctly denied the motion.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Duncan Reliford v. State, 241 So. 2d 871 (Fla. 2d DCA 1970)…600, this 2nd District Court said that “A movant for post-conviction relief must allege factual elements sufficient to constitute a basis for the collateral relief sought, otherwise the motion is deficient.” See also Swindle v. State, Fla.App.1967, 202 So. 2d 132; Brumley v. State, Fla.App.1969, 224 So. 2d 447; Sampson v. State, Fla.App.1963, 158 So. 2d 771. The total lack of supporting allegations of fact as to the asserted exclusion of Negroes on juries, either trial juries or grand juries, is pointed up…
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Burau v. State, 353 So. 2d 1183 (Fla. 3d DCA 1977)…ld have taken. The established rule is that a motion to vacate judgment and sentence may not be used as a substitute for an appeal and matters properly presented on appeal may not be asserted as grounds for a motion to vacate. See Swindle v. State, 202 So. 2d 132 (Fla. 3d DCA 1967); Suarez v. State, 220 So. 2d 442 (Fla. 3d DCA 1969); Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975). Further, if the matter forming the basis of a motion to vacate was known to the defendant at the time of trial, it will not…
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Wilkin Leroy Gibson v. State, 213 So. 2d 8 (Fla. 4th DCA 1968)…ecision. A motion for post-conviction relief should not be scrutinized for technical niceties. However, it is necessary that any contentions be supported by allegations of fact and not be stated as mere conclusions. Swindle v. State, Fla.App.1967, 202 So. 2d 132; Crusoe v. State, Fla.App.1966, 183 So. 2d 600. Petitioner has failed to allege the ultimate facts which support his conclusion that he was coerced into pleading guilty. Thus, the allegation is not sufficient to warrant an evidentiary hearing. Lee v…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964)
- Dancy v. State, 175 So. 2d 208 (Fla. 3d DCA 1965)
- Harper v. State, 168 So. 2d 325 (Fla. 1st DCA 1964)
- Williams v. State, 167 So. 2d 795 (Fla. 3d DCA 1964)
- Murray v. State, 175 So. 2d 236 (Fla. 3d DCA 1965)
- Rogers Rudolph Brooks v. State, 188 So. 2d 883 (Fla. 4th DCA 1966)
- Adolphus Brooks v. State, 194 So. 2d 303 (Fla. 1st DCA 1967)
- Messer v. State, 169 So. 2d 378 (Fla. 2d DCA 1964)