JAMES KISH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Kish appealed the denial of his motion to vacate his conviction under Rule 1.850, arguing that his search warrant was issued without probable cause. The court affirmed the denial, holding that challenges to search warrant validity must be raised on direct appeal and cannot be raised for the first time in a post-conviction motion to vacate.
A petition to vacate under Rule 1.850 cannot be used as a substitute for a direct appeal. Questions regarding the admissibility of evidence obtained through unlawful search are reviewable on appeal from conviction but not on a motion to vacate or set aside sentence.
[1] A petition to vacate a judgment and sentence cannot be used as a substitute for a direct appeal.
[2] Issues regarding the admissibility of evidence obtained from an allegedly unlawful search are generally reviewable on direct appeal from a conviction, not on a motion to…
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Join FLexlaw to unlock all legal intelligence“Generally, questions raised as to admissibility of evidence obtained as the result of an unlawful search are reviewable on appeal from the judgment of conviction but not upon a motion to vacate or set aside the sentence.”
Establishes that search warrant challenges must be raised on direct appeal, not in post-conviction motions.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKish was convicted after trial on criminal charges. During trial, his attorneys filed a motion to suppress evidence seized during a search of his resi…
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During his trial on criminal charges the attorneys for James Kish filed a motion to suppress certain evidence seized by the police during a search of his residence. It was argued that the search warrant which authorized the search of his residence “was issued without the requisite probable cause”. The motion to suppress the evidence was denied. After conviction and sentence Kish took a direct appeal to this court. The judgment of conviction and sentence were affirmed. Kish v. State, Fla.App.1967, 198 So.2d 639.
Later, Kish filed a petition to vacate the judgment and sentence under Rule 1.850, CrPR. 33 F.S.A. He sought an eviden-tiary hearing and alleged the search warrant authorizing the search of his premises was invalid because it was issued on the basis of an insufficient affidavit. He alleged that his attorneys assured him the legality of the affidavit and of the search and seizure would be raised as points in his direct appeal but acknowledges that those points were not raised or presented in that appeal. He alleged that he did not waive any rights with respect to the invalidity of the affidavit and the search and seizure. The trial court denied his petition to vacate without an evidentiary hearing and he has appealed from that order.
The record reveals that, at trial, the attorneys for Kish thoroughly and extensively examined the maker of the affidavit to determine whether the search warrant issued upon probable cause; that they received an adverse ruling on that point and did not raise that ruling as a point in his direct appeal. That matter could or should have been raised in the direct appeal. See Peterson v. State, Fla.App. 1970, 237 So.2d 223; Crusoe v. State, Fla.App.1966, 183 So.2d 600; and Duncan v. State, *890Fla.App.1964, 161 So.2d 718. Austin v. State, Fla.App.1964, 160 So.2d 730 states:
“Generally, questions raised as to admissibility of evidence obtained as the result of an unlawful search are reviewable on appeal from the judgment of conviction but not upon a motion to vacate or set aside the sentence.”
A petition under Rule 1.850, CrPR. may not be used as a substitute for an appeal. Suarez v. State, Fla.App.1969, 220 So.2d 442.
The order appealed is
Affirmed.
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Citator
Cited By
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Joseph v. State, 447 So. 2d 243 (Fla. 3d DCA 1983)…cess could be directed against process served in the 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,…
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Glimmert Beckham v. State, 353 So. 2d 941 (Fla. 3d DCA 1978)…PER CURIAM. Affirmed. See: Thomas v. State, 206 So. 2d 475 (Fla. 2d DCA 1968); Brown v. State, 227 So. 2d 527 (Fla. 1st DCA 1969); Kish v. State, 253 So. 2d 889 (Fla. 3d DCA 1971); Phillips v. State, 313 So. 2d 428 (Fla.3d DCA 1975).…
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Buck v. State, 441 So. 2d 1175 (Fla. 4th DCA 1983)…PER CURIAM. AFFIRMED. See Alvord v. State, 396 So. 2d 184 (Fla.1981); Kish v. State, 253 So. 2d 889 (Fla. 3d DCA 1971); Foster v. [*1176] State, 400 So. 2d 1 (Fla.1981); and Meeks v. State, 382 So. 2d 673 (Fla.1980). HERSEY, GLICKSTEIN and DELL, JJ., concur.…
Authorities Cited
- Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964)
- Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970)
- Crusoe v. State, 183 So. 2d 600 (Fla. 2d DCA 1966)
- Duncan v. State, 161 So. 2d 718 (Fla. 3d DCA 1964)
- Kish v. State, 198 So. 2d 639 (Fla. 3d DCA 1967)
- Efrain T. Suarez v. State, 220 So. 2d 442 (Fla. 3d DCA 1969)