CARTHEL JAMES RUSHING, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
The appellant was sentenced to life imprisonment for murder in 1959. He now appeals from an order denying his second motion for relief pursuant to Rule 1.850, Florida Rules of Criminal Procedure, 33 F.S.A. The sole ground for relief alleged is that he was deprived of the right to appeal the judgment of conviction in 1959.
Appellant’s petition fails to allege any error or irregularity in his trial; it was denied without hearing by the trial judge. We affirm for the reasons set forth in Murray v. State, Fla.App.1966, 191 So.2d 292; Nelson v. State, Fla.App.1968, 208 So.2d 506, 510; Pierson v. State, Fla.App.1968, 214 So.2d 17. See also Powe v. State, Fla. 1968, 216 So.2d 446 (opinion filed December 10, 1968).
Affirmed.
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E. Elevator, Inc. v. Page, 263 So. 2d 218 (Fla. 1972)…e as the “cause” shown. Our First District in Rosenfeld v. Glickstein, 200 So. 2d 242 (1967), held that a plaintiff’s filing of a notice of taking deposition constituted an act of prosecution. Our Second District in Cypress Corp. of Fla. v. Smith, 218 So. 2d 481 (1969), held that the filing of an answer by a defendant constitutes “prosecution” of an action. Petitioner in his brief does not find the Cypress decision “particularly disturbing because it preserves the basic concept of the test which is that the…
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Harris v. Winn-Dixie Stores, Inc., 378 So. 2d 90 (Fla. 1st DCA 1979)…le constituted affirmative prosecution of the action to justify denial of the Motion to Dismiss, even though plaintiff failed to answer the interrogatories. The court cited and approved a holding in Cypress Corp. of Fla. v. Smith, Fla. 2nd DCA 1969, 218 So. 2d 481, that the filing of an Answer by a defendant constitutes prosecution of an action. In Phillips Petroleum Company v. Heimer, Fla. 3rd DCA 1976, 339 So. 2d 284, there was a third-party claim against three third-party defendants. There was no action o…
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Nelson v. Stonewall Ins. Co., 440 So. 2d 664 (Fla. 1st DCA 1983)…y); Kenet v. Stein, 326 So. 2d 36 (Fla. 3d DCA 1976) (plaintiff’s notice of hearing on motion to dismiss third-party complaint); Milu, Inc. v. Duke, 256 So. 2d 83 (Fla. 3d DCA 1971) (plaintiff’s notice of hearing); Cypress Corp. of Florida v. Smith, 218 So. 2d 481 (Fla. 2d DCA 1969) (filing of answer); City of Miami v. Railway Express Agency Inc., 141 So. 2d 285 (Fla. 3d DCA 1962) (plaintiff’s notice of hearing defendant’s motion for production of medical reports). . Marschall v. Water-Boggan International,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nelson v. State, 208 So. 2d 506 (Fla. 4th DCA 1968)
- Powe v. State, 216 So. 2d 446 (Fla. 1968)
- Murray v. State, 191 So. 2d 292 (Fla. 3d DCA 1966)
- Pierson v. State, 214 So. 2d 17 (Fla. 1st DCA 1968)