LOWELL WAYNE ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a second or successive motion for similar relief is not required to be entertained by the sentencing court.
[1] A trial court is not required to entertain a second or successive motion for post-conviction relief when the motion presents no new facts and duplicates grounds from a pr…
[2] A motion for post-conviction relief that fails to present new facts not contained in a prior petition may be denied on the grounds that it is a successive motion.
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Join FLexlaw to unlock all legal intelligenceAppellant Roberts was convicted of manslaughter and later filed a motion to vacate the judgment and sentence. This motion was denied by the trial cour…
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Appellant Lowell Wayne Roberts brings to this Court for review an order entered by the trial Court denying his motion for post-conviction relief.
On February 23, 1966, appellant Roberts was informed against for the offense of manslaughter. On February 28, 1966, he was arraigned, entered plea of not guilty, and in due course was tried and convicted by a jury of the offense charged. He was adjudged guilty by the Court, and on April 11, 1966, was sentenced to serve a term of imprisonment in the State Prison.
On October 28, 1970, some four and a half years thereafter, he filed his motion in the trial Court under CrPR 1.850, 33 F. S.A., to vacate and set aside the judgment and sentence upon sundry grounds. On November 17, 1970, order was entered by the trial Court denying the post-trial motion. It is this order that Roberts now asks this Court to review. We affirm.
The order entered by the trial' Court denying the motion for relief contains a finding by the Court that the instant motion by Roberts is the “second of its nature” filed by him and that it sets forth “no new facts not contained in the previous petition”. It must be assumed, in the absence of anything to the contrary, that such previous motion was determined adversely on the merits against Roberts and also that the grounds urged in the previous motion were duplicated in the instant motion. This being true, the instant motion violates that portion of CrPR 1.850 which provides that “the sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” Upon this premise alone, the order here appealed was not erroneous. See Marshall v. State, Fla.App.1969, 224 So.2d 723; Laboda v. State, Fla.App.1970, 239 So.2d 107; Saunders v. State, Fla.App.1970, 238 So.2d 680.
However, we have carefully considered the contentions of appellant Roberts on this appeal and find that they are clearly without merit; so the order appealed from is therefore—
Affirmed.
HOBSON and McNULTY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)…different legal grounds is permitted under the Rule and should not be summarily dismissed solely on the basis that the prisoner has previously filed another Rule 3.850 motion. See Palmer v. State, 273 So. 2d 135 (Fla. 3d DCA 1973); Roberts v. State, 250 So. 2d 918 (Fla. 2d DCA 1971); Piehl v. State, 173 So. 2d 723 (Fla. 1st DCA 1965), quashed on other grounds, 184 So. 2d 417 (Fla.1966); Archer v. State, 166 So. 2d 163 (Fla. 2d DCA 1964). As the foregoing discussion demonstrates, if the summary denial in the…
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White v. State, 363 So. 2d 1137 (Fla. 3d DCA 1978)…PER CURIAM. Affirmed. Walden v. State, 310 So. 2d 426 (Fla.3d DCA 1975); Roberts v. State, 250 So. 2d 918 (Fla.2d DCA 1971); Fast v. State, 221 So. 2d 203 (Fla.3d DCA 1969).…
Authorities Cited
- Rodeheaver v. State, 224 So. 2d 723 (Fla. 1st DCA 1969)
- Saunders v. State, 238 So. 2d 680 (Fla. 3d DCA 1970)
- Atl. Corp. v. Biscayne Fin. Co., 239 So. 2d 107 (Fla. 4th DCA 1970)
- Laboda v. State, 239 So. 2d 107 (Fla. 3d DCA 1970)