DUNCAN RELIFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Duncan Reliford appealed the denial of his post-conviction motion for discharge under Rule 1.850, challenging his conviction on four grounds: alleged exclusion of Black jurors, an out-of-court identification without counsel, failure to advise of appeal rights, and ineffective counsel. The court affirmed the lower court's denial, finding all contentions without merit.
The court held that none of Reliford's contentions had merit. The motion for discharge and to vacate sentence was properly denied. The court found that Reliford failed to allege sufficient factual elements to support any of his four grounds for relief.
[1] A motion for post-conviction relief must allege specific factual elements to support the claim for relief, otherwise the motion is deficient.
[2] The presence of all white jurors in the trial of a Black defendant charged with raping a white woman does not constitute error.
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Join FLexlaw to unlock all legal intelligence“A movant for post-conviction relief must allege factual elements sufficient to constitute a basis for the collateral relief sought, otherwise the motion is deficient.”
Establishes the legal standard for post-conviction relief motions, requiring factual allegations rather than bare conclusions.
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Join FLexlaw to unlock all legal intelligenceReliford was convicted of a crime and filed a post-conviction motion for relief alleging his constitutional rights were violated. He contended that co…
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Appellant Duncan Reliford appeals to this Court from an order entered by the Lee County Circuit Court denying his motion for discharge and to vacate sentence brought under Rule 1.850, Rules of Criminal Procedure, 33 F.S.A.
As grounds for his motion for discharge, Reliford contends (1) that his “constitutional rights were violated” in that “colored people were systematically excluded from the grand jury rolls”, (2) he did not receive a fair trial in that he was exposed to “a form of line-up”, without the assistance of counsel, (3) he was not advised of his right to appeal, and (4) his trial counsel was inadequate. In the light of the record, there is no merit to any of such contentions, but we will discuss them briefly seriatim.
(1) Alleged Exclusion of Negroes on Grand Jury.
No factual allegations are contained in Reliford’s petition for relief. The contention is raised as a bare, naked conclusion. In Crusoe v. State, Fla.App.1966, 183 So.2d 600, this 2nd District Court said that “A movant for post-conviction relief must allege factual elements sufficient to constitute a basis for the collateral relief sought, otherwise the motion is deficient.” See also Swindle v. State, Fla.App.1967, 202 So.2d 132; Brumley v. State, Fla.App.1969, 224 So.2d 447; Sampson v. State, Fla.App.1963, 158 So.2d 771.
The total lack of supporting allegations of fact as to the asserted exclusion of Negroes on juries, either trial juries or grand juries, is pointed up with emphasis in the light of this 2nd District Court’s opinion in Porter v. State, Fla.App.1968, 214 So.2d 73, wherein we held it was not error “for all of the jurymen to be white in the trial of a Negro defendant charged with raping a white woman.” See also State v. Lewis, 1943, 152 Fla. 178, 11 So.2d 337.
(2) Out-of-Court Identification in Absence of Counsel.
Reliford apparently relies upon the U. S. Supreme Court cases of United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 1149, and Gilbert v. California, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, which hold that out-of-Court identification of a defendant will invalidate an in-Court identification under certain circumstances, namely, where the iii-Court *873identification is directly and materially affected and influenced by the previous out-of-Court identification. But it is expressly pointed out in both Wade and Gilbert that where the trial Court identification has not been influenced by the previous out-of-Court identification, but on the contrary is of an independent origin, the previous identification becomes immaterial as affecting the identification at trial.
The instant record here shows that the identification of Reliford at the trial was wholly independent of any observation in the jail. In his petition for relief, Reli-ford has wholly failed to show that he does not come squarely within the exception stated aforesaid in Wade and Gilbert.
(3) Failure of Counsel to Advise of Right to Appeal.
Reliford does not in any way show he was misled by the action or inaction of his trial counsel with reference to an appeal. He does not negative in his petition for relief the fair supposition that he well knew of his right to appeal of his own personal knowledge. Neither does he negative the fact that he was advised by the Court of his right to appeal, which is currently uniform procedure.
(4) General Incompetence of Counsel.
Cases are abundant to the effect that to afford colorable post-conviction relief the incompetence of appointed counsel must be such as to render the trial a mockery and a farce. No such allegations were made. In fact, the petition contains no factual allegations to show inadequacy of counsel to any degree.
This disposes of all contentions made here, adversely to Reliford. So the order appealed from is—
Affirmed.
HOBSON, C. J., and MANN, J., concur.
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C. H. v. State, 419 So. 2d 346 (Fla. 3d DCA 1982)…PER CURIAM. Affirmed. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Ashford v. State, 274 So. 2d 517 (Fla.1973); Reliford v. State, 241 So. 2d 871 (Fla. 2d DCA 1970); Avis v. State, 221 So. 2d 235 (Fla. 1st DCA 1969).…
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Daniels v. State, 262 So. 2d 725 (Fla. 3d DCA 1972)…al conversation and in the intimidating circumstance of a pistol-point hold-up for a relatively long time interval in a lighted area, so that sure identification was possible.” jJj ‡ * Hí ‡ (Emphasis supplied) See Reliford v. State, Fla.App.1970, 241 So. 2d 871. In the case at bar, the victim who identified the appellant stated that the appellant approached him in a tavern parking lot, demanded his money, pulled out a gun, and took his watch and wallet. The victim scuffled with the appellant and the victi…
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Delaughter v. State, 641 So. 2d 932 (Fla. 2d DCA 1994)…lly insufficient to state claims for posteonviction relief because each is merely a conclusional allegation with no factual support for the contention that the jury venire did not reflect a fair cross section of the community. See Reliford v. State, 241 So. 2d 871 (Fla.2d DCA 1970); Davis v. State, 627 So. 2d 112 (Fla.1st DCA 1993). We affirm the trial court’s order which denied relief; however, as to these two issues only, it is without prejudice to Delaughter to file a specific motion for posteonviction rel…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Gilbert v. California, 388 U.S. 263 (U.S. 1967)
- Maxwood Clarence Brumley v. State, 224 So. 2d 447 (Fla. 4th DCA 1969)
- Arthur v. Sampson, 158 So. 2d 771 (Fla. 2d DCA 1963)
- Crusoe v. State, 183 So. 2d 600 (Fla. 2d DCA 1966)
- Swindle v. State, 202 So. 2d 132 (Fla. 3d DCA 1967)
- State v. Will Lewis, 152 Fla. 178 (Fla. 1943)
- Town OF Palm Beach v. Gottesman, 152 Fla. 182 (Fla. 1943)
- Porter v. State, 214 So. 2d 73 (Fla. 2d DCA 1968)