CHARLES ARTHUR GELIS AND NELSON FLOYD SPIVEY, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court affirmed the denial of relief for Spivey but reversed and remanded for Gelis, finding a Bruton error that applied retroactively.
Appellants were convicted of grand larceny. They appealed the denial of post-conviction relief petitions, raising issues regarding jury instructions a…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Joint Representation cases and more on FLexlaw
On direct appeal of their convictions for grand larceny the Public Defender raised only the question of sufficiency of evidence, and this court, finding the evidence sufficient, affirmed. They now appeal the denial of petitions under Fla.R.Crim.P. 1.850, 33 F.S.A.
The instruction on unexplained possession of recently stolen property held erroneous in Gamble v. State, 210 So.2d 238 (Fla.App.1968) was given but not objected to by the defender, so that point is lost.
The defender likewise made no objection to the assignment of the same attorney to represent both defendants. This is fundamental error which may be raised initially on Rule 1.850 petition, but does not apply to cases like this one tried before Baker v. State, 202 So.2d 563 (Fla.1967) was decided. Dunbar v. State, Fla.App., 214 So.2d 52, opinion filed September 18, 1968.
Thus the order in the case of Spivey must be affirmed.
*87Gelis raises an additional question. Spivey gave a statement about his own involvement in the matter which was admitted at trial but which would have been inadmissible against Gelis if he had been tried alone. The argument that a severance should have been granted Gelis, although the defender again neglected to request it, is well founded on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which was held in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) to apply retroactively. See also Wall v. State, Fla.App., 214 So.2d 384, opinion filed October 2, 1968.
The order in Gelis’ case is reversed and remanded for further proceedings not inconsistent with this opinion.
LILES, C. J., and PIERCE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Rowe v. State, 250 So. 2d 920 (Fla. 2d DCA 1971)…without credit for jail time is unconstitutional, but no other judge of this court agrees. I would reverse as to Rowe so that he may be retried without the prejudicial inadmissible testimony of Mullinnix’ flight. . Gelis v. State, Fla.App.2d 1968, 215 So. 2d 86; Reddick v. State, Fla.App.2d 1966, 190 So. 2d 340; Westbrook v. State, Fla.1953, 64 So. 2d 320; Suarez v. State, Fla.1928, 95 Fla. 42, 115 So. 519. . Cason v. State, Fla.App.2d 1968, 211 So. 2d 604; Sylvia v. State, Fla.App.3rd 1968, 210 So. 2d 28…
Authorities Cited
- Bruton v. United States, 391 U.S. 123 (U.S. 1968)
- Roberts v. Russell, 392 U.S. 293 (U.S. 1968)
- Baker v. State, 202 So. 2d 563 (Fla. 1967)
- Dunbar v. State, 214 So. 2d 52 (Fla. 2d DCA 1968)
- Gamble v. State, 210 So. 2d 238 (Fla. 2d DCA 1968)
- Wall v. State, 214 So. 2d 384 (Fla. 2d DCA 1968)