GEORGE POWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Powell appeals an order denying his post-conviction relief motion under Florida Criminal Procedure Rule 1.850, challenging his rape conviction. Powell contended he received inadequate counsel and that his in-court identification was tainted due to improper pretrial photographic identification procedures, but the court affirmed the denial of relief.
The court rejected Powell's claims, holding that questions of trial tactics regarding witness presentation and examination are within counsel's discretion and do not demonstrate inadequate representation. Issues concerning pretrial identification procedures should have been raised on direct appeal and are not proper grounds for collateral post-conviction attack.
[1] Matters of trial tactics, such as the number of witnesses called or the extent of examination and cross-examination, are within the discretion of the attorney and do not…
[2] Alleged errors that were assigned or could have been assigned on direct appeal from a judgment of conviction are not grounds for collateral attack in post-conviction reli…
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Join FLexlaw to unlock all legal intelligence“Whether he called as many witnesses as appellant thought he should, or engaged in as extensive an examination and cross-examination of witnesses as appellant felt he should, are all matters of trial tactics to be employed in accordance with the discretion and judgment of the attorney.”
Establishes that counsel's decisions regarding witness strategy are discretionary tactical matters, not grounds for inadequate assistance claims.
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Join FLexlaw to unlock all legal intelligencePowell was convicted of rape by jury with a recommendation of mercy. He sought post-conviction relief arguing, among other things, that his court-appo…
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Appellant seeks reversal of an order denying his motion for post-conviction relief brought pursuant to Criminal Procedure Rule 1.850, 33 F.S.A. By this proceeding appellant seeks to have set aside a judgment of conviction and sentence based upon a jury verdict finding him guilty of rape, with a recommendation of mercy.
By his motion for relief appellant contends, among other things, that he was afforded inadequate representation by counsel appointed by the court to defend him against the charge for which he was indicted. This court judicially knows that the attorney appointed by the court to represent appellant is one of the most experienced and highly respected practitioners in the field of criminal law in Duval County. Whether he called as many witnesses as appellant thought he should, or engaged in as extensive an examination and cross-examination of witnesses as appellant felt he should, are all matters of trial tactics to be employed in accordance with the discretion and judgment of the attorney. The record does not sustain appellant’s contention that the representation he received was inadequate or deprived him of a fair and impartial trial.
Appellant further contends that the in-court identification made of him by the State’s witnesses was tainted and should have been held inadmissible because his attorney was not notified or permitted to be present when a pretrial photographic identification was made of him by the State’s witnesses. This is a matter which, if erroneous, should have been and presumably was challenged on appeal from the judgment of conviction and sentence. Appellant’s appeal was affirmed by this court, thereby laying at rest all alleged errors which were assigned or could have been assigned in an attack on the original judgment of conviction. Such matters are not grounds for collateral attack in post-conviction proceedings.
*747Careful consideration has been’given to the remaining points of appellant hut after full consideration we find that he has failed to demonstrate reversible error. The judgment of the lower court is accordingly affirmed.
WIGGINTON, Acting C. J., and CARROLL, DONALD K, and RAWLS, JJ., concur.
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Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981)…ere reviewable by the direct appeal taken from the judgment following the trial of this case, Ferby v. State, 381 So. 3d 785 (Fla. 5th DCA 1980), and are not matters which are proper grounds for ancillary post-conviction relief. See Powell v. State, 244 So. 2d 746 (Fla. 1st DCA 1971); Brown v. State, 227 So. 2d 527 (Fla. 1st DCA 1969), appeal dismissed, 237 So. 2d 175 (Fla. 1970). Included in this category is appellant’s complaint about rulings of the trial judge relating to the admissibility of certain evide…1 / 2
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State v. Rhoden, 36 Fla. Supp. 194 (Brevard Cty. Ct. 1972)…So. 2d 473; Solloa v. State, Fla. App. 1969, 227 So. 2d 217; Fuller v. Wainwright, Fla. S. Ct. 1970, 238 So. 2d 65; Robinson v. State, Fla. App. 1970, 239 So. 2d 282; Meinson v. State, Fla. App. 1970, 240 So. 2d 188; Powell v. State, Fla. App. 1971, 244 So. 2d 746. The court relieved one appointed counsel, Noah McKinnon, because he was not pleasing to the defendant and appointed John A. Reed, with whom the defendant expressed satisfaction. (2) Involuntary, coerced plea: The defendant claims his guilty plea w…
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Nicholson v. State, 250 So. 2d 347 (Fla. 4th DCA 1971)…a.App.1970, 240 So. 2d 188; Brown v. State, Fla.App.1966, 191 So. 2d 612; Thomas [*348] v. State, Fla.App.1966, 190 So. 2d 361; Fisher v. State, Fla.App.1970, 239 So. 2d 863; Byrd v. State, Fla.App.1971, 243 So. 2d 1; Powell v. .State, Fla.App.1971, 244 So. 2d 746; and Coleman v. State, Fla.App.1967, 193 So. 2d 699. Affirmed. REED, OWEN and MAGER, JJ., concur.…
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