SMILEY VINCENT KEENE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the denial of a motion to vacate a conviction and sentence. The court held that a motion to vacate must allege specific errors in the original trial proceedings, not just a failure to advise of the right to appeal, to warrant relief.
Yes, a motion to vacate a conviction and sentence must allege specific errors or irregularities in the original trial proceedings that would have warranted reversal on direct appeal, even if the motion also claims the defendant was not advised of his right to appeal.
“This motion was summarily denied on October 16, 1968. The only allegation alleged in the motion that warrants discussion here was that his trial-appointed counsel did not advise him of "his right to appeal the decision of the Court."”
Describes the basis of the motion to vacate and the lower court's action.
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Join FLexlaw to unlock all legal intelligenceAppellant Keene was convicted of robbery in 1965 and sentenced to 30 years. He later filed a motion to vacate the conviction and sentence, alleging th…
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In May, 1965, appellant Keene was convicted by a jury after trial upon an information charging robbery, and was thereupon sentenced to a term of 30 years imprisonment.
On October 7, 1968 he filed his motion to vacate the conviction and sentence under CrPR 1.850, 33 F.S.A. This motion was summarily denied on October 16, 1968. The only allegation alleged in the motion that warrants discussion here was that his trial-appointed counsel did not advise him of “his right to appeal the decision of the *177Court.” We will assume he meant the judgment of conviction entered against him after trial.
No showing is made in the motion of any alleged error or irregularity of the trial proceedings that might reasonably have brought about a reversal of the judgment upon direct appeal. This Court has recently held, in Barnett v. State, Fla.App. 1969, 222 So.2d 30, that a motion so filed must contain such allegation, specifying the substantial error or irregularity relied upon. In Barnett it was shown that all four District Courts of Appeal have now held uniformly on this point.
Upon authority of Barnett and the cases therein cited, the order appealed from is
Affirmed.
LILES, C. J., and MANN, J., concur.