MICHAEL MILES BELSKY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Michael Belsky appealed the denial of his motion for post-conviction relief, arguing his private attorney was incompetent and that he was denied effective assistance of counsel. The court affirmed the denial, holding that defendants generally cannot attack the competency of privately retained counsel, and that the circumstances here did not meet the narrow exception to that rule.
A defendant generally may not attack the competency of privately retained counsel. Even if such an attack were permitted, the trial court correctly denied the motion because the defendant failed to establish circumstances meeting the narrow exception recognized in federal case law, as the trial court adequately inquired into the voluntariness of the guilty plea, counsel explained the nature of the plea, and the defendant's testimony was not contradictory to his plea.
[1] A defendant generally may not attack the competency of privately retained counsel in a post-conviction relief proceeding.
[2] A guilty plea is valid if intelligently and voluntarily entered after an exhaustive examination by the court.
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Join FLexlaw to unlock all legal intelligence“generally a defendant may not attack the competency of his privately retained counsel”
Establishes the primary holding that private defendants have limited ability to challenge counsel competency
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Join FLexlaw to unlock all legal intelligenceBelsky was indicted for first-degree murder and was represented by a privately employed attorney who advised him to plead guilty. Belsky entered the g…
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This is an appeal from an order denying appellant’s motion made pursuant to Rule 1.8S0, Florida Rules of Criminal Procedure, 33 F.S.A., for post conviction relief. The order of denial was entered after the trial judge conducted a full evidentiary hearing.
The appellant was indicted for first degree murder. He was represented by a privately employed attorney, who advised the appellant to plead guilty. The appellant tendered a guilty plea. After an exhaustive examination in open court to determine if the plea was intelligently and voluntarily entered, the court accepted the plea and sentenced the appellant to life imprisonment.
Appellant now urges that his privately employed attorney was incompetent and that therefore he was denied the effective assistance of counsel. Although the trial court took evidence on this allegation and determined that it was not true, we think it should be further pointed out that generally a defendant may not attack the competency of his privately retained counsel. See Frizzell v. State, Fla.App.1968, 213 So.2d 293; Everett v. State, Fla.App.1964, 161 So.2d 714. Appellant relies upon United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3rd Cir. 1968), for a contrary holding. The exception made in that case is inapplicable here, since there: (1) the trial court failed to conduct any inquiry into the defendant’s understanding of the nature and consequences of his guilty plea; (2) trial counsel failed at any time to explain to his client the nature of a guilty plea; (3) the defendant’s testimony at trial basically contradicted his guilty plea. None of these circumstances is present in the instant case.
Appellant also urges as a factor on the issue of the adequacy of his representation the suggestion that his lawyer was not qualified to represent him because the lawyer had previously represented another individual when that individual had been questioned by the authorities about the crime of which appellant was convicted. This record reveals that this circumstance was fully explained by counsel to his client and that at the evidentiary hearing on the petition for relief, the appellant admitted knowing of the circumstances prior to accepting the privately employed counsel.
Having reviewed the record in the light of appellant’s contentions in his motion for relief, we hold that the trial court correctly denied the motion.
Affirmed.
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Clement Lemmon Edwards v. State, 393 So. 2d 597 (Fla. 3d DCA 1981)…364 So. 2d 775 (Fla. 1st DCA 1978), cert. denied, 373 So. 2d 460 (Fla.1979); Capo v. State, 363 So. 2d 410 (Fla. 1st DCA 1978); Crespo v. State, 339 So. 2d 697 (Fla. 3d DCA 1976); Suarez v. State, 338 So. 2d 546 (Fla. 3d DCA 1976); Belsky v. State, 231 So. 2d 256 (Fla. 3d DCA 1970); Brown v. State, 223 So. 2d 337 (Fla. 3d DCA), cert. denied, 229 So. 2d 866 (Fla.1969), cert. denied, 397 U.S. 969, 90 S.Ct. 1009, 25 L.Ed.2d 262 (1970); Frizzell v. State, 213 So. 2d 293 (Fla. 2d DCA 1968); Ford v. State, 210 So.…
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Vagner v. Louie L. Wainwright, 398 So. 2d 448 (Fla. 1981)…taples v. State, 298 So. 2d 545 (Fla. 2d DCA 1974); State v. Pinto, 273 So. 2d 408 (Fla. 3d DCA), cert. dismissed, 283 So. 2d 367 (Fla.1973); Humphries v. State, 232 So. 2d 23 (Fla. 1st DCA), cert. denied, 237 So. 2d 752 (Fla.1970); Belsky v. State, 231 So. 2d 256 (Fla. 3d DCA 1970); Brown v. State, 223 So. 2d 337 (Fla. 3d DCA), cert. denied, 229 So. 2d 866 (Fla. 1969), cert. denied, 397 U.S. 969, 90 S.Ct. 1009, 25 L.Ed.2d 262 (1970); Byrd v. State, 220 So. 2d 14 (Fla. 3d DCA 1969); Frizzell v. State, 213 So.…
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Alton Glenn Dickenson v. State, 261 So. 2d 561 (Fla. 3d DCA 1972)…be granted a new trial because of the alleged incompetence of appellant’s privately retained trial counsel. Such an argument is not a ground for post-judgment relief. Cappetta v. Wainwright, Fla.1967, 203 So. 2d 609; Belsky v. State, Fla.App. 1970, 231 So. 2d 256. Nevertheless, we have examined the record and find no action or failure to act by appellant’s trial counsel that cannot reasonably be explained as a decision undertaken with the best interests of the appellant in mind. The proof of guilt was more t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Everett v. State, 161 So. 2d 714 (Fla. 3d DCA 1964)
- United States ex rel. Albert B. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968)
- Frizzell v. State, 213 So. 2d 293 (Fla. 2d DCA 1968)