CLARENCE LLOYD WHITLOW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clarence Whitlow appeals the denial of his post-conviction motion to vacate his guilty plea and 25-year sentence for armed robbery. The court affirmed the denial, finding that Whitlow's contentions regarding search and seizure, denial of counsel, and involuntariness of his plea were either procedurally barred or unsupported by factual allegations.
The court affirmed the denial of the post-conviction motion. A CrPR 1.850 motion cannot be based on challenges to the propriety of evidence admission, and a guilty plea waives attacks on search and seizure validity. Furthermore, the defendant failed to allege facts demonstrating involuntariness of the plea or denial of counsel regarding the disputed evidence.
[1] A motion to vacate a judgment of conviction under CrPR 1.850 cannot be based upon contentions involving the propriety of the admission of evidence.
[2] A plea of guilty waives the right to attack the validity of any search or seizure of evidence or its admissibility.
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Join FLexlaw to unlock all legal intelligence“a motion to vacate the judgment of conviction under CrPR 1.850 cannot be based upon contentions involving the propriety of admission of evidence”
Establishes the threshold procedural bar to Whitlow's search and seizure argument on post-conviction review.
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Join FLexlaw to unlock all legal intelligenceOn August 31, 1970, Whitlow was charged with armed robbery. On October 28, 1970, he entered a guilty plea and was sentenced to 25 years imprisonment. …
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In this case appellant Clarence Lloyd Whitlow appeals to this Court from an order entered by the Manatee County Court of Record denying a motion of Whitlow filed pursuant to CrPR 1.850, 33 F.S.A. to vacate a previous adjudication of guilt and sentence to twenty-five years imprisonment imposed by that Court pursuant to a plea of guilty to the offense of robbery.
On August 31, 1970, a criminal information was filed charging Whitlow with the offense of armed robbery. ' On October 28, 1970, he entered plea of guilty to the offense and was sentenced to the term of imprisonment aforesaid. On March 30, 1971, he filed pro se his post-conviction motion to vacate the judgment and sentence. On April 22, 1971, the motion to vacate was summarily denied by the trial Court, from which order of denial Whitlow has appealed to this Court, alleging error in the entry of the order without an evidentiary hearing thereon.
The local Public Defender, appointed by the trial Court to represent Whitlow in this Court, filed here a brief on September 8, 1971, setting forth that he had “carefully examined the Record on Appeal and based upon the transcript of testimony is of the opinion that this is a frivolous appeal”. He asked to be relieved as attorney of record for Whitlow on the appeal under authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. On September 17, 1971, this Court, taking cognizance of the foregoing, entered order reciting that a copy of the Public Defender’s brief had been served upon Whitlow and giving Whitlow thirty days therefrom to. “file additional brief calling the Court’s attention to any matters that he feels should be considered in connection with the appeal in this cause.”
No additional brief has been filed by Whitlow, but on July 12, 1971, Whitlow filed herein what he called his “Supplemental Brief of Appellant”, which we will consider as his additional brief. Therein he raises, or attempts to raise, three points of contention: (1) whether the search and seizure was “illegally made”; (2) whether he was denied his right to counsel “at the questioning and interrogation”; and (3) whether his plea was made voluntarily and understanding^”. We hold adversely to Whitlow but will briefly discuss these contentions.
(1) Legality of Search and Seizure. The law is established that a motion to vacate the judgment of conviction under CrPR 1.850 cannot be based upon contentions involving the propriety of admission of evidence. Robinson v. State, Fla.App. 1967, 194 So.2d 29; Miles v. State, Fla. App.1965, 174 So.2d 576; Childs v. State, Fla.App. 1966, 190 So.2d 605; Coleman v. State, Fla.App. 1967, 193 So.2d 699. Furthermore, the plea of guilty, which in effect waived trial on the merits, precludes at this time an attack on the validity of any search or seizure of evidence or admissibility as evidence.
(2) Denial of Right to Counsel at “Questioning and Interrogation”. No evidence was admitted, or sought to be admitted, or even shown to have been considered by the Court, obtained by virtue of any “questioning and interrogation”.
(3) On Voluntariness of Plea. A motion for relief under CrPR 1.850 must allege facts, not conclusions, sufficient to demonstrate deprivation of a constitutional right. Taylor v. State, Fla. App.1965, 171 So.2d 402; Sam v. State, *50Fla.App. 1964, 167 So.2d 258. No facts were alleged here to show that the guilty plea was entered involuntarily or without understanding the full import and consequences thereof.
The order appealed from was properly entered and is accordingly—
Affirmed.
HOBSON and MANN, JJ., concur.
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Cited By (12 total)
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Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981)…issed, 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 evidence, see, e.g., Nelson v. State, 281 So. 2d 49 (Fla. 3d DCA 1973); Whitlow v. State, 256 So. 2d 48 (Fla. 2d DCA 1971); and the sufficiency of the evidence. See, e.g., Robinson v. State, 194 So. 2d 29 (Fla. 2d DCA 1967); Brooks v. State, 188 So. 2d 883 (Fla. 4th DCA), cert. denied, 192 So. 2d 496 (Fla. 1966). The defendant claims he was inadequa…
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Rackley v. State, 571 So. 2d 533 (Fla. 1st DCA 1990)…stating: As the attached ten-page sentence shows, the conditions of Defendant’s sentence (no gain-time will be granted) were made clear to him at sentencing. When Defendant decided to plea guilty, he gave up his right to a trial. Whitlow v. State, 256 So. 2d 48 (Fla. 2d DCA 1971). Therefore, his counsel had no need to investigate his case any further. A plea form signed by a Defendant stating that his plea was freely and voluntarily entered and that he was pleased with his attorney defeats any later claims…
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Joseph v. State, 447 So. 2d 243 (Fla. 3d DCA 1983)…to whether a valid counterclaim for abuse of process 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,…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Erwin v. Erwin, 167 So. 2d 258 (Fla. 2d DCA 1964)
- Childs v. State, 190 So. 2d 605 (Fla. 3d DCA 1966)
- In the Interest of S. T. P., 194 So. 2d 29 (Fla. 3d DCA 1967)
- Ellis Taylor, Jr. v. State, 171 So. 2d 402 (Fla. 2d DCA 1965)
- Lum Coleman v. State, 193 So. 2d 699 (Fla. 1st DCA 1967)
- Miles v. State, 174 So. 2d 576 (Fla. 3d DCA 1965)