NATHANIEL WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nathaniel Williams appealed the denial of his post-conviction relief motion, challenging his 1955 armed robbery conviction on grounds that the trial judge failed to instruct the jury on lesser included offenses and that his counsel failed to inform him of his appeal rights. The court affirmed the denial, holding that Williams waived the instructional error by failing to object at trial and that post-conviction motions alleging counsel's failure to appeal must also allege colorable trial error.
The court held that the instructional error was waived by Williams's failure to object or request such an instruction at trial and could not be raised on collateral attack. The court also held that even if counsel failed to pursue an appeal, a post-conviction motion alleging such failure must allege colorable error or irregularity in the trial that could reasonably result in reversal on direct appeal.
“In the absence of such objection or request any error with respect to the instructions to the jury is deemed to have been waived and could not even be raised upon direct appeal from a judgment of conviction, let alone upon a collateral attack in seeking post-conviction relief.”
Establishes the waiver doctrine—failure to object to jury instructions at trial waives the error for all subsequent appeals, including collateral attacks.
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Join FLexlaw to unlock all legal intelligenceWilliams was charged with armed robbery in March 1955, tried and convicted by jury in July 1955, and sentenced to 15 years in state prison. He was rep…
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Appellant Nathaniel Williams appeals to this Court from an order denying without hearing a motion for post-conviction relief under CrPR 1.850, 33 F.S.A.
On March 25, 1955, information was filed in the Hillsborough County Criminal Court of Record charging Williams with armed robbery. On July 15, 1955, he was tried and convicted by a jury, was adjudged guilty, and on the same day was sentenced to serve 15 years in the State Prison.
Almost 14 years later, on May 7, 1969, Williams filed motion under CrPR 1.850 to vacate the judgment and sentence, contending in substance (a) that the trial Judge “erred by not instructing the jury” upon the “lesser included offense of * * larceny”, and (b) that “petitioners defense counsel prevented petitioner from taking an appeal by failing to inform petitioner that he had the right to appeal his case”. On May 19, 1969, the trial Court entered order denying without hearing the motion to vacate, from which order this appeal comes to this Court.
(a) At the trial Williams was represented by his privately employed counsel, Honorable Oscar Norton, now deceased. The record before this Court does not show, nor did Williams’ motion to vacate allege, that any objection was made at the trial to the giving or failure to give any instruction with reference to a “lesser included offense”. In the absence of such objection or request any error with respect to the instructions to the jury is deemed to have been waived and could not even be raised 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 Williams requested him so to do; but even if all these elements together had been alleged, the motion would still have stated no ground for setting aside the judgment. This Court, in Barnett v. State, Fla. App.1969, 222 So.2d 30, held that it is necessary for such a post-conviction motion, even though it alleges any or all of the foregoing elements, must “go further and allege in such motion colorable error or irregularity in the trial that could reasonably result in the reversal of the judgment upon direct appeal”. In Barnett we pointed out that all four District Courts of Appeal are now in accord on the proposition, citing cases from each jurisdiction where it has been so held. The instant motion to vacate makes no allegation that, even if a direct appeal had been taken from the judgment of conviction, there would have been any cause or ground “that could reasonably result in the reversal of the judgment”.
The order appealed from is therefore affirmed.
Affirmed.
HOBSON, C. J., and MANN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Burkhead v. State, 206 So. 2d 690 (Fla. 3d DCA 1968)
- Barnett v. State, 222 So. 2d 30 (Fla. 2d DCA 1969)
- Nimrod C. Grace v. State, 206 So. 2d 225 (Fla. 4th DCA 1968)
- Pinkney v. State, 219 So. 2d 42 (Fla. 2d DCA 1969)