FRANK JAMES DENSON, APPELLANT,
v.
STATE OF FLORIDA APPELLEE
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The court held that allegations of knowing use of perjured testimony and refusal to call a witness are legally insufficient to vacate a judgment under CrPR 1.850, and failure to file a direct appeal is also not grounds for such a motion.
Appellant filed a motion to vacate his conviction pursuant to CrPR 1.850, alleging the prosecution used perjured testimony, his counsel refused to cal…
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This appeal is from an order denying appellant’s motion to vacate filed pursuant to CrPR 1.850, 33 F.S.A.
The allegation that the prosecution knowingly used perjured testimony while legally sufficient as a ground for relief, Rayburn v. State, Fla.App.1967, 203 So.2d 212, is conclusively refuted by the transcript of the trial proceedings as contained in the record on appeal.
The allegation that court appointed counsel refused to call a star witness is legally insufficient to sustain a motion to vacate. Simpson v. State, Fla.App.1964, 164 So.2d 224.
The allegation that appellant was deprived of a direct appeal through failure of court appointed counsel to file an appeal is not grounds for the relief sought under CrPR 1.850. Barnett v. State, Fla.App.1969, 222 So.2d 30; Coleman v. State, Fla.App.1968, 215 So.2d 96; Mobley v. State, Fla.App.1968, 215 So.2d 90; Nelson v. State, Fla.App.1968, 208 So.2d 506. If appellant’s right to direct appeal is shown to have been frustrated through a state functionary, he may obtain delayed appellate review by writ of habeas corpus in the district court of appeal. Powe v. State, Fla.1968, 216 So.2d 446; Hollingshead v. Wainwright, Fla.1967, 194 So.2d 577; State ex rel. Ervin v. Smith, Fla.1964, 160 So.2d 518; Jackson v. State, Fourth District Court of Appeal, 227 So.2d 354, opinion filed October 8, 1969.
The order denying appellant’s motion to vacate is affirmed, without prejudice to the right of appellant to seek delayed appellate review by writ of habeas corpus in this court upon sufficient showing of his entitlement to such.
Affirmed.
CROSS, C. J., and REED and OWEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)
- Simpson v. State, 164 So. 2d 224 (Fla. 3d DCA 1964)
- State of Fla. ex rel. Richard W. Ervin v. Smith, 160 So. 2d 518 (Fla. 1964)
- Nelson v. State, 208 So. 2d 506 (Fla. 4th DCA 1968)
- Powe v. State, 216 So. 2d 446 (Fla. 1968)
- Coleman v. State, 215 So. 2d 96 (Fla. 4th DCA 1968)
- Jackson v. State, 227 So. 2d 354 (Fla. 4th DCA 1969)
- Rayburn v. State, 203 So. 2d 212 (Fla. 2d DCA 1967)
- Barnett v. State, 222 So. 2d 30 (Fla. 2d DCA 1969)
- Mobley v. State, 215 So. 2d 90 (Fla. 4th DCA 1968)