EARL PINKNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim regarding jury instructions cannot be raised in a motion to vacate judgment and sentence.
Appellant filed a third motion to vacate judgment and sentence, alleging the trial court erred by failing to instruct the jury on lesser included offe…
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Appellant appeals from a denial of his third motion to vacate judgment and sentence made pursuant to CrPR 1.850, 33 F.S.A.
Since being incarcerated appellant has filed three motions to vacate. The first two were also denied, the second being affirmed on appeal to this court at 205 So.2d 716. He has twice been denied habeas corpus relief in the federal courts.
Appellant’s third motion to vacate, the subject of this appeal, alleges that the court erred in failing to instruct on the lesser included offenses of assault with intent to commit robbery.
Our review of the records of appellant’s case reveals that the court only instructed as to the offense charged and did not instruct on lesser included offenses, as alleged in the motion. However, this court cannot consider the merits of appellant’s contention because instructions to the jury are not subject to collateral attack and are unacceptable as grounds for post-conviction relief. Lawson v. State, Fla.App. 1968, 215 So.2d 790; Devlin v. State, Fla.App.1966, 192 So.2d 786; Baxley v. State, Fla.App.1966, 192 So.2d 510. This alleged error could have properly been raised on direct appeal, but was not.
We also note that appellant would not have prevailed had he raised this point in his direct appeal since he failed to request the instruction he now says was erroneously omitted, and he did not object to *43the instructions that were given. He .therefore waived the lesser offense privilege. See Brown v. State, Fla.1968, 206 So.2d 377.
Affirmed.
HOBSON and PIERCE, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williams v. State, 227 So. 2d 692 (Fla. 2d DCA 1969)…upon direct appeal from a judgment of conviction, let alone upon a collateral attack in seeking post-conviction relief. Grace v. State, Fla.App. 1968, 206 So. 2d 225; Burkhead v. State, Fla.App. 1968, 206 So. 2d 690; Pinkney v. State, Fla.App. 1969, 219 So. 2d 42. (b) As hereinbefore stated, Williams was represented at his trial by privately retained counsel. There is no allegation in his motion to vacate that his counsel failed or refused or neglected to take a direct appeal from the conviction, or that Wi…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Reuel Lawson v. State, 215 So. 2d 790 (Fla. 2d DCA 1968)
- Devlin v. State, 192 So. 2d 786 (Fla. 3d DCA 1966)
- Baxley v. State, 192 So. 2d 510 (Fla. 1st DCA 1966)
- Am. Land Dev. Corp. v. Redden, 192 So. 2d 510 (Fla. 4th DCA 1966)
- Denver Stansbury v. State, 205 So. 2d 716 (Fla. 2d DCA 1968)
- Sherley v. Craig, 205 So. 2d 716 (Fla. 3d DCA 1968)