HARRY CLYDE SELLERS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Harry Clyde Sellers appealed the denial of his petition to vacate his rape conviction. The appellate court affirmed the trial court's denial, finding that Sellers' arguments either lacked factual support, were procedurally barred, or were inconsistent with controlling law at the time of his trial.
The court affirmed the denial of the petition to vacate. Sellers' challenges to the preliminary hearing, lineup identification, and prior appellate issues were procedurally barred or controlled by inapplicable law. The trial court's finding that trial counsel was competent and adequately prepared was supported by substantial evidence.
[1] A defendant may not raise an issue for the first time on appeal if no objection was raised in the trial court.
[2] The Supreme Court's decision in Coleman v. …
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), it was held that the Wade opinion was not retroactive. The line-up which is objected to in the present case was held prior to Wade and is, therefore, not controlled by that decision.”
Establishes that the court applied retroactivity doctrine to exclude Wade lineup protections from applying to pre-Wade identification procedures.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSellers was indicted, tried by jury, and convicted of rape. His initial direct appeal was affirmed in 1968. He subsequently filed a petition to vacate…
The full statement of facts, procedural history, and disposition for this case are member content.
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Harry Clyde Sellers was indicted, tried by a jury and convicted for the crime of rape. On direct appeal his judgment of conviction was affirmed. Sellers v. State, Fla.App.1968, 212 So.2d 659.
He later filed a petition to vacate the final judgment. See Rule 1.850, CrPR, 33 F.S.A. -The trial court held an evidentiary hearing and entered an order denying the petition to vacate. This appeal followed.
In this appeal the public defender examined the record on appeal and filed a motion to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L. Ed.2d 493 (1967); State v. Herzig, Fla.1968, 208 So.2d 619; and Lee v. State, Fla.App.1967, 204 So.2d 245. The public defender filed a memorandum brief.
On consideration of the motion to withdraw, this court withheld ruling and ordered a copy of the memorandum brief to be furnished to Sellers and permitted him thirty days within which to file a statement of any points which he wished to submit as grounds in support of this appeal.
Sellers filed a statement of the points upon which he desired to rely and agreed that he would prefer to dismiss the public defender and to proceed in this matter in proper person. In accordance with the expressed desire of Sellers we grant the motion of the public defender to withdraw as counsel in this cause and he is discharged from further responsibility in this appeal.
We have considered the points submitted by Sellers and the public defender in support of the petition. We have reviewed Points One and Two and find that they are conclusions of law and are not supported by any factual allegations in the petition. We, therefore, do not consider these points.
In Point Three, Sellers argues that he was denied counsel at his preliminary hearing. We observe that his preliminary hearing was held prior to the decision of the Supreme Court in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); and that Harrison v. Wainwright, Fla.App.1971, 243 So.2d 427, held that the Coleman decision does not apply in Florida. We note that no objection on this ground was raised in the trial court and hold that such point may not be raised *521for the first time on appeal. Jones v. State, Fla.App.1971, 248 So.2d 517, 3 D.C.A., filed May 25, 1971.
Sellers then argues that the trial judge erred in allowing a pretrial line-up identification to be used in court at the time of his trial. Our examination of the record in the prior appeal, and in the present appeal reveals that United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149, was decided June 12, 1967. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), it was held that the Wade opinion was not retroactive. The line-up which is objected to in the present case was held prior to Wade and is, therefore, not controlled by that decision.
Sellers attempts to raise a point concerning questions asked of him about testimony which he related to a psychiatrist and statements of the state’s attorney in relation to these comments. Sellers raised this matter unsuccessfully in his direct appeal and he may not again raise this point on this appeal. The same ruling applies to his point that the trial court erred in failing to direct a verdict at the close of the state’s case.
Sellers complains of the failure of the trial court to grant his motion for mistrial made during the cross-examination of a witness, Mrs. Noreen Nolan. Generally, the admissibility of evidence cannot be raised in a motion under Rule 1.850, CrPR. See Robinson v. State, Fla.App.1967, 194 So.2d 29. Nevertheless, we have examined this point and find that Sellers’ alleged objection to the proposed questioning was sustained and that there was no evidence admitted on the point which Sellers complains of and there was no prejudicial comment by the prosecution.
The defendant’s remaining point charges the incompetency of his trial counsel. The trial court conducted an eviden-tiary hearing on this matter and made a finding that the trial counsel was not incompetent and that trial counsel had spent many hours in preparation for the trial, which included interviews with all the material witnesses in the case.
We find sufficient, competent and substantial evidence to support this finding.
For these reasons the order denying the motion to vacate filed by appellant Sellers be and the same is
Affirmed.
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Cited By
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Joseph v. State, 447 So. 2d 243 (Fla. 3d DCA 1983)…main action). . See e.g., Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981); Nelson v. State, 281 So. 2d 49 (Fla. 3d DCA 1973); Whitlow v. State, 256 So. 2d 48 (Fla. 2d DCA 1971); Kish v. State, 253 So. 2d 889 (Fla. 3d DCA 1971); Sellers v. State, 249 So. 2d 519 (Fla. 3d DCA 1971); Garner v. State, 218 So. 2d 460, 463 (Fla. 2d DCA 1969); Paulk v. State, 211 So. 2d 591 (Fla. 2d DCA 1968); Robinson v. State, 194 So. 2d 29 (Fla. 2d DCA 1967); Brown v. State, 187 So. 2d 669 (Fla. 3d DCA), cert. denied, 192 So.…
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Zide v. State, 253 So. 2d 917 (Fla. 3d DCA 1971)…33 F.S.A. The trial judge heard argument on the issue that his trial counsel was incompetent and ruled that his trial attorney conducted the trial in a competent manner. No error has been demonstrated in this ruling. Sellers v. State, Fla.App.1971, 249 So. 2d 519. His point that the State knowingly used perjured testimony at trial is based on the same facts that were argued and considered on direct appeal under a point directed to the weight and sufficiency of the evidence. Matters raised and disposed of on…
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McKINON v. Louie L. Wainwright, 705 F.2d 419 (11th Cir. 1983)…D. . The exact language of the brief was, “Furthermore, a claim of denial of Appellant’s rights at preliminary hearing cannot be raised for the first time on appeal from denial of petition to vacate judgment as has been done here. Sellers v. State, 249 So. 2d 519 (3 D.C.A. 1971).”…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Stovall v. Denno, 388 U.S. 293 (U.S. 1967)
- Coleman v. Alabama, 399 U.S. 1 (U.S. 1970)
- Harrison v. Louie L. Wainwright, 243 So. 2d 427 (Fla. 1st DCA 1971)
- LEE v. State, 204 So. 2d 245 (Fla. 4th DCA 1967)
- In the Interest of S. T. P., 194 So. 2d 29 (Fla. 3d DCA 1967)
- State v. Herzig, 208 So. 2d 619 (Fla. 1968)
- Earton David Jones v. State, 248 So. 2d 517 (Fla. 3d DCA 1971)
- Sellers v. State, 212 So. 2d 659 (Fla. 3d DCA 1968)