EUGENE PETERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peterson appealed an order denying his motion to vacate his conviction for breaking and entering with intent to commit grand larceny. The court affirmed the denial, holding that Peterson's grounds for vacation were matters that could have been raised on direct appeal and did not demonstrate constitutional error warranting collateral attack.
The court held that Peterson's motion to vacate should be denied because the grounds asserted were matters that could or should have been raised on direct appeal, and none of the claims went to the trial court's jurisdiction or the legality of the sentence. Peterson's ineffective assistance of counsel claim was without merit.
[1] Matters that were or could have been raised on direct appeal are generally not subject to collateral attack.
[2] A motion to vacate a conviction cannot be used to raise issues that were or could have been litigated on direct appeal, absent a jurisdictional defect or an unauthorized…
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Join FLexlaw to unlock all legal intelligence“Each of the matters raised by appellant in his motion to vacate clearly were matters which could or should have been raised on the direct appeal, except perhaps for appellant's present claim that he was denied the benefit of the assistance of competent counsel.”
Establishes the standard that collateral attack motions cannot raise issues that could have been presented on direct appeal.
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Join FLexlaw to unlock all legal intelligencePeterson was convicted of breaking and entering with intent to commit grand larceny. His conviction was previously affirmed on direct appeal along wit…
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Appellant seeks reversal of an order denying his motion to set aside and vacate his conviction for breaking and entering with intent to commit grand larceny. Appellant’s conviction, along with those of his accomplices, was affirmed by this court on direct appeal. See Barber et al. v. State, Fla.App., 226 So.2d 35.
The order now being reviewed recites as its basis that the grounds asserted by appellant in his motion to vacate were matters which were or could have been raised in appellant’s direct appeal to this court. We agree with the able trial judge.
Each of the matters raised by appellant in his motion to vacate clearly were matters which could or should have been raised on the direct appeal, except perhaps for appellant’s present claim that he was denied the benefit of the assistance of competent counsel. None of the other claims go to the question of the trial court’s jurisdiction to enter the judgment nor is it contended that the sentence imposed was not authorized by law. There is no showing that appellant’s trial resulted in a denial or infringement of his constitutional rights so as to render the judgment of conviction vulnerable to collateral attack. See Austin v. State, 160 So.2d 730 (Fla.App.1964). Appellant’s claim directed to assistance of counsel is wholly without merit. Appellant was represented by able and dedicated counsel from the office of the Public Defender for the Second Judicial Circuit in and for Gadsden County, Florida. No defendant is guaranteed an acquittal by the constitution. Failure to be acquitted is too often blamed on defense counsel. This, of course, is a convenient place to lay the blame. However, defense counsel, no matter how ingenious he may *224be, cannot prevent the State from demonstrating defendant’s guilt through the use of lawful trial procedures. Taking note of the nature of the jury’s verdict in appellant’s case, defense counsel, who is now charged with incompetency, would have done a far better job for his client had the client not seen fit to break into the feed store or motor company with the intent to steal.
Affirmed.
CARROLL, DONALD K., Acting C. J., and WIGGINTON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (23 total)
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Amell v. State, 344 So. 2d 944 (Fla. 3d DCA 1977)…e carefully examined the record on appeal and considered the briefs, and have concluded that appellant has not presented any grounds which would entitle him to the relief sought. Suarez v. State, 220 So. 2d 442 (Fla. 3d DCA 1969); Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970); Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975). Therefore, the order appealed is affirmed. Affirmed.…
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Yanks v. State, 273 So. 2d 401 (Fla. 3d DCA 1973)…eal and that an appellate court will not consider matters raised by such a motion when those issues could have or should have been raised by means of direct appeal. See Jenkins v. State, Fla.App.1972, 267 So. 2d 886; Peterson v. State, Fla.App.1970, 237 So. 2d 223; Lee v. State, Fla.App.1965, 173 So. 2d 520. Therefore, for the reasons stated, the order denying appellant’s motion to vacate is hereby affirmed. Affirmed. . Fla.Stat., § 40.01(3), F.S.A., provides: “(3) In the selection of jury lists only such…
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Stallings v. State, 319 So. 2d 640 (Fla. 1st DCA 1975)…presenting him on direct appeal did not raise prejudicial errors for consideration by this Court. A motion to vacate and set aside judgment and sentence is properly denied when the matters could have been raised on direct appeal. Peterson v. State, 237 So. 2d 223 (Fla.App. 1st, 1970). Grounds (2) and (3) of Stallings’ motion could have been raised on direct appeal. In addition, the record reflects that the trial court did no more than ask a witness several questions for the purpose of clarifying his previous…
Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964)
- Barber v. State, 226 So. 2d 35 (Fla. 1st DCA 1969)