ROBERT SPENCER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Robert Spencer sought post-conviction relief under Rule 3.850 of the Florida Criminal Procedure Rules, challenging the admission of his fingerprints as evidence in his 1967 conviction for breaking and entering and grand larceny. The court affirmed the denial of his motion, holding that because Spencer had already raised and waived the issue on direct appeal, it could not be revisited through collateral attack.
Post-conviction relief under Rule 3.850 is not available for claims that were raised on direct appeal, even if they are based on constitutional violations such as illegal search and seizure. Spencer's claim was procedurally barred because he assigned the suppression motion's denial as error on appeal but failed to argue it in his brief, thereby voluntarily waiving the issue.
[1] Questions presentable on direct appeal are not proper subjects for collateral attack of a conviction under Rule 3.850 CrPR.
[2] A defendant who voluntarily waives an assignment of error on direct appeal by failing to argue it in their brief cannot later raise that issue in a post-conviction motion…
Previewing 2 of 3 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“The Florida decisions hold that questions presentable on appeal are not proper subjects for collateral attack of a conviction under Rule 3.8S0 CrPR.”
Establishes the fundamental principle that collateral post-conviction relief cannot be used to raise issues that were or could have been addressed on direct appeal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSpencer was convicted on December 6, 1967, of breaking and entering a dwelling and grand larceny, and sentenced to four years in prison. His initial d…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Assignments Of Error cases and more on FLexlaw
Appellant seeks reversal of an order of the criminal court of record of Dade County denying his motion, filed under Rule 3.850 CrPR, 33 F.S.A., for relief from a conviction.
On December 6, 1967, the appellant was convicted of breaking and entering a dwelling, and of grand larceny, and was sentenced to imprisonment in the state prison for a period of four years. He appealed, and this court affirmed on July 16, 1968 (212 So.2d 805). The Supreme Court of Florida denied certiorari.
Thereafter, on November 21, 1970, the appellant filed his motion under Rule 3.850 CrPR in the trial court. Thereby he sought to obtain a new trial upon contending the trial court committed error by permitting his fingerprints, which had been *513taken by the police earlier on a round-up of suspects, to be used for comparison with a fingerprint found at the place of the offense, by which it was established that the latter was a fingerprint of the appellant. The motion was denied by the trial court, and this appeal followed.
In renewing that contention here, the appellant cites Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed. 676, for the proposition that fingerprints taken upon detention solely for that purpose prior to arrest for the offense for which the person subsequently is charged, may not be so used.
The Florida decisions hold that questions presentable on appeal are not proper subjects for collateral attack of a conviction under Rule 3.8S0 CrPR. That has been applied to admission of evidence claimed to have been obtained on an illegal search. Austin v. State, Fla.App. 1964, 160 So.2d 730; Duncan v. State, Fla.App. 1964, 161 So.2d 718; Kirkland v. State, Fla. App.1964, 165 So.2d 774; Grayson v. State, Fla.App.1966, 191 So.2d 587.
However, appellant cites Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227, allowing a defendant who was convicted in a federal court to seek post conviction relief there under 28 U.S. C.A. § 2255, for admission of evidence obtained by illegal search and seizure, although such is a matter reviewable on appeal. The Kaufman case dealt with a situation where no challenge of the evidence on such ground of illegality had been made at trial or on appeal. It appears to have been recognized in Kaufman (394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d at 238 and 240) that if the matter was presented by motion to suppress in the trial court and there denied or was presented on appeal and rejected by the appellate court, it would not present proper basis for collateral attack by a post conviction motion.
That situation prevailed in this case. Here the defendant made a timely motion to suppress the challenged evidence in the trial court, and the motion was heard and denied. In addition, it was developed in the argument on the present appeal that on his prior direct appeal from the judgment the appellant had assigned as error the trial court’s denial of his motion to suppress the evidence in question, but that the point or assignment of error was not argued in appellant’s brief on the appeal. Therefore, although the question was also raised on the direct appeal, by having been assigned as error, it was voluntarily waived there by failure to argue the same. Rule 3.7, subd. i, FAR, 32 F.S. A. provides that assignments of error which are not argued in the brief will be deemed abandoned.
For the reasons assigned the order of the trial court denying the post trial motion is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Spencer v. State, 267 So. 2d 833 (Fla. 1972)…Certiorari denied. 259 So. 2d 512. ROBERTS, C. J., and ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.…
-
Alphonso Williams v. State, 296 So. 2d 578 (Fla. 1st DCA 1974)…he contends that he was the victim of an unreasonable search and seizure. This point was raised in the trial and in the assignments of error on his direct appeal but it was not argued and was therefore abandoned. See Spencer v. State, Fla.App. (3rd) 259 So. 2d 512, cert. den., Fla., 267 So. 2d 833. Second, appellant contends he was not accorded a prompt first appearance as required by Rule 3.130(b)(1) F.R.Cr.P., 33 F.S.A. This rule did not become effective until after affirmance of appellant’s conviction. Al…
Authorities Cited
- Kaufman v. United States, 394 U.S. 217 (U.S. 1969)
- Davis v. Mississippi, 394 U.S. 721 (U.S. 1969)
- Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964)
- Duncan v. State, 161 So. 2d 718 (Fla. 3d DCA 1964)
- Kirkland v. State, 165 So. 2d 774 (Fla. 3d DCA 1964)
- Grayson v. State, 191 So. 2d 587 (Fla. 3d DCA 1966)
- Carter v. State, 212 So. 2d 805 (Fla. 3d DCA 1968)