JESSE JOSEPH TAFERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jesse Joseph Tafero appeals from an order denying his motion to vacate a jury conviction for assault with intent to commit rape, crime against nature, entering without breaking with intent to commit robbery, and robbery. The appellate court affirmed the trial court's denial of the motion, finding no constitutional violations and holding that several arguments were procedurally barred.
The court affirmed the trial court's denial of the motion to vacate, holding that Tafero was not entitled to relief. The court found that the line-up claim had been previously addressed on appeal and should not be relitigated, that the information defect argument was properly rejected under precedent, that the lesser included offense instruction claim was procedurally barred as it should have been raised on direct appeal, and that the verdict form argument was likewise procedurally improper.
[1] A motion to vacate a judgment and sentence cannot be used as a substitute for a direct appeal when the defendant was represented by counsel at trial and on the initial ap…
[2] A defendant may not raise issues on a motion to vacate that could have been, but were not, presented on direct appeal from the judgment and sentence.
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Join FLexlaw to unlock all legal intelligence“There should be an end to litigation.”
Establishes the court's reliance on finality principles to reject relitigation of claims previously addressed on direct appeal.
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Join FLexlaw to unlock all legal intelligenceTafero was convicted by jury of four crimes: assault with intent to commit rape, crime against nature, entering without breaking with intent to commit…
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The appellant was found guilty by a jury of (1) assault with intent to commit rape; (2) committing a crime against nature; (3) entering without breaking with intent to commit robbery; (4) robbery. After judgment and sentence his appeal was filed in this court and the judgment and sentence were affirmed. See Tafero v. State, Fla.App.1969, 223 So.2d 564. A petition for certiorari was filed in the Supreme Court of Florida and denied by that court. Thereafter he filed a motion to vacate the judgment and sentence and an amended motion to vacate pursuant to Fla. CrPR 1.-850, 33 F.S.A. The trial court conducted an evidentiary hearing on the motion to vacate. The court denied the motion and entered an extensive order considering the several contentions advanced by the appellant. This appeal is from that order.
Appellant’s single point presented states only that the trial court erred in denying the motion. He urges first that his constitutional rights were violated at the police line-up where he was not afforded counsel. This point was discussed in the opinion which denied the first appeal. There should be an end to litigation. See Faulkner v. State, Fla.App.1969, 226 So.2d 441.
Appellant’s next point argues that the information was defective in that it was improperly sworn to. The trial court cited Champlin v. State, Fla.App.1960, 122 So.2d 412 in denying the motion. See also Bretti v. State, Fla.App.1970, 239 So.2d 527.
Appellant also urges that at his trial the court did not properly instruct the jury upon a lesser included offense. Appellant was represented at trial and upon appeal of the judgment by privately employed counsel. He may not now use a motion pursuant to Fla. CrPR 1.850 as a substitute for appeal. Peterson v. State, Fla.App.1970, 237 So.2d 223.
Finally appellant argues that the form of the verdict which says “Entering Without Breaking an Apartment Dwelling” was improper. The trial judge noted that the record does not show an objection to the form of the verdict and that the record does reflect a proper adjudication. This argument is one which if available at all should have been presented upon an appeal from the judgment and sentence. Appellant was afforded a fair trial and a violation of a constitutional right has not been shown.
Affirmed.
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Tafero v. State, 406 So. 2d 89 (Fla. 3d DCA 1981)…e of his trial. That which was known, Tafero’s appellate afterthoughts, earlier found its way into a collateral attack filed on the heels of his unavailing direct appeal. In 1971, we affirmed the denial of that motion to vacate. See Tafero v. State, 242 So. 2d 470 (Fla.3d DCA 1971). . Rule 3.590(a) was later amended to provide for a ten-day period within which to file a motion for new trial. . While Hallman at one point states that the writ of error coram nobis can be issued only by the affirming appellate…
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Earton David Jones v. Louie L. Wainwright, 252 So. 2d 570 (Fla. 1971)…ecided adversely to the petitioner. Jones v. State, 248 So. 2d 517 (3d DCA Fla. 1971). This Court will not reconsider on a petition for writ of habeas corpus those issues already considered and determined by another appellate court. Tafero v. State, 242 So. 2d 470 (3d DCA Fla.1971); Carter v. State, 242 So. 2d 737 (1st DCA Fla.1970); Hollingshead v. Wainwright, 194 So. 2d 577 (Fla.1967); Roberts v. State, 242 So. 2d 191 (3d DCA Fla.1970). As between the state and this defendant, those issues already disposed…
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McCLUSTER v. Louie L. Wainwright, 453 F.2d 162 (5th Cir. 1972)…der Florida law an issue which was, or could have been, assigned as error on direct appeal cannot constitute grounds for collateral attack through post-conviction proceedings. See, Powell v. State, 244 So. 2d 746 (Fla.App.1st 1971); Tafero v. State, 242 So. 2d 470 (Fla.App.3rd 1971); Bretti v. State, 239 So. 2d 527 (Fla.App.3rd 1970); Peterson v. State, 237 So. 2d 223 (Fla.App.1st 1970); and Albright v. State, 239 So. 2d 641 (Fla.App.2nd 1970). 5. Additionally, the principle of res judicata is applicable in…
Authorities Cited
- Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970)
- Champlin v. State, 122 So. 2d 412 (Fla. 2d DCA 1960)
- Tafero v. State, 223 So. 2d 564 (Fla. 3d DCA 1969)
- Bretti v. State, 239 So. 2d 527 (Fla. 3d DCA 1970)
- Curley Faulkner v. State, 226 So. 2d 441 (Fla. 2d DCA 1969)