MARVIN EUGENE FISHER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Fisher appealed the denial of his post-conviction motion for relief under Rule 1.850, which challenged his convictions for robbery and assault with intent to commit robbery. The appellate court affirmed the trial court's denial, rejecting Fisher's claims of lack of probable cause for arrest and ineffective assistance of counsel.
The trial court did not err in denying the motion. The absence of probable cause was a matter properly raised on direct appeal and therefore not a proper ground for post-conviction relief. The ineffective assistance claims were without merit and also improperly raised collaterally rather than on direct appeal.
[1] A claim regarding the absence of probable cause for an arrest, if presentable on direct appeal, is not a proper ground for seeking relief under Rule 1.850 CrPR.
[2] A change in appointed counsel during pre-trial proceedings does not constitute ineffective assistance of counsel absent a showing of timely objection and resulting prejud…
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Join FLexlaw to unlock all legal intelligence“The matter to which appellant's first contention relates was presentable by appeal, and in fact was raised on his appeal which resulted in affirmance of the judgments.”
Establishes that lack of probable cause is not a proper ground for post-conviction relief under Rule 1.850 because it was already raised on direct appeal.
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Join FLexlaw to unlock all legal intelligenceFisher was charged with robbery and assault with intent to commit robbery. He pleaded not guilty, was tried on April 27, 1967, and was found guilty an…
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The appellant was charged in separate informations with the crimes of robbery and assault with intent to commit robbery, to which he pleaded not guilty and upon which he was tried on April 27, 1967, in the Criminal Court of Record of Dade County, found and adjudged guilty and sentenced to imprisonment for terms of fifteen and five years respectively, to run concurrently. On appeal to this court, the judgments were affirmed. 208 So.2d 521.
On March 12, 1970, the appellant filed a motion under Rule 1.850 CrPR, 33 F.S.A., for relief from the judgments and sentences. The trial court denied the motion. On this appeal therefrom the appellant argues that the trial court erred in denying his motion for relief contending there was an absence of probable cause for his arrest, and that he was denied effective assistance of counsel at the trial.
We have considered those contentions in the light of the record and briefs and find them to be without merit. The matter to which appellant’s first contention relates was presentable by appeal, and in fact was raised on his appeal which resulted in affirmance of the judgments. See Whitney v. State, Fla.App.1966, 184 So.2d 207, 209.
Regarding the contention relating to representation by counsel at trial, appellant argues he was denied effective representation by the public defender because the assistant public defender who represented him at the trial was not the same as the assistant public defender who had acted in his behalf in the proceedings prior to trial. We reject that argument of the appellant on the authority of Cole v. State, Fla.App.1965, 172 So.2d 607, 608. The ground there asserted is not a basis for claiming error in the absence of a showing on the record of timely objection by or on behalf of the defendant to having a trial proceed with an appointed attorney different from that who had represented him and with whom he had consulted earlier, and then only upon a showing that prejudice resulted. Moreover, as shown by the case just cited, that matter was one presentable on direct appeal from the judgment. As such it was not a proper ground for seeking relief under Rule 1.850 CrPR. See Whitney v. State, supra. Appellant also contended he was denied effective representation in that the assistant public defender who represented him at the trial had not previously conferred with him with reference to the case. The trial court was not in error in rejecting that contention. See Simpson v. State, Fla.App.1964, 164 So.2d 224. Additionally, in this case the appellant had the benefit of representation by an assistant public defender in the proceedings prior to trial, and does not assert that the latter did not confer with him regarding the case. Nor was the trial court in error in discounting, as being a ground of the motion without merit, the contention that the appellant was denied effective representation because of failure of his appointed counsel to move to suppress certain evidence. That was a matter within the range of judgment or strategy of counsel, which, even if it should represent bad judg*865ment, does not constitute ground for collateral attack of the judgment on motion. Simpson v. State, supra.
Affirmed.
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Gonzalez v. State, 579 So. 2d 145 (Fla. 3d DCA 1991)…cisions of counsel do not justify post conviction relief. Buford v. State, 492 So. 2d 355 (Fla.1986); Straight v. Wainwright, 422 So. 2d 827 (Fla.1982). Even where the tactical decision evinces bad judgment, relief is not justified. Fisher v. State, 239 So. 2d 863 (Fla. 3d DCA 1970). Finally, in order to obtain relief, appellant must not only show that the errors committed by counsel fell outside the range of professionally acceptable performance, but also that there is a reasonable probability that, but for…
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Jemel Watson v. State, 633 So. 2d 525 (Fla. 2d DCA 1994)…e child was extremely prejudicial, we cannot conclude that such testimony rendered the trial itself illegal. Although the decision of trial counsel to object or to move to suppress evidence is a matter of judgment or strategy, see Fisher v. State, 239 So. 2d 863 (Fla. 3d DCA 1970), Watson, in a proceeding before the trial court, might be able to prove that his counsel was ineffective in. failing to request removal of Watson’s jury during Tomingo’s case. Affirmed without prejudice to the appellant’s right…
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Jessie v. State, 726 So. 2d 356 (Fla. 5th DCA 1999)…lice lacked probable cause to arrest him. The absence of probable cause for an arrest is an issue that could have and should have been raised on direct appeal, and it is accordingly not a viable basis for post-conviction relief. See Fisher v. State, 239 So. 2d 863 (Fla. 3d DCA 1970). This argument appears to be an attempt to re-litigate substantive [*357] matters which should have been presented on direct appeal, under the guise of ineffective assistance of counsel. In any event, the point is conclusively re…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simpson v. State, 164 So. 2d 224 (Fla. 3d DCA 1964)
- Whitney v. State, 184 So. 2d 207 (Fla. 3d DCA 1966)
- Cole v. State, 172 So. 2d 607 (Fla. 3d DCA 1965)
- W. L. Cobb Constr. Co. v. Fla. E. Coast Ry. Co., 208 So. 2d 521 (Fla. 4th DCA 1968)
- Long v. State, 208 So. 2d 521 (Fla. 3d DCA 1968)