GERARD CHARLES REINARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerard Charles Reinard appeals from a trial court's denial of his post-conviction motion to vacate his burglary conviction. The appellate court affirms the denial, holding that Reinard's various claims lack merit and that certain contentions should have been raised at trial or on direct appeal, not in post-conviction proceedings.
The court affirmed the denial of Reinard's post-conviction motion, holding that his various contentions lack merit and that issues regarding trial procedure and alleged prosecutor/judge comments should have been raised at trial or on direct appeal, not in post-conviction proceedings.
[1] A defendant's failure to raise issues at trial or on direct appeal generally precludes their consideration in a post-conviction relief proceeding.
[2] A transcript of trial proceedings is necessary to establish claims of error related to comments made during the trial.
Previewing 2 of 5 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“Attorney for Appellant made a diligent attempt to present law to the Court which would show that Appellant should not have been convicted of the crime. This is rather difficult in that he was traced from the scene of the crime and chased down by the victim, who eventually overturned his (Appellant's) car in a wild chase on U.S. 19.”
The Public Defender's candid description of the facts establishing Reinard's guilt and the difficulty of mounting a viable appeal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn July 2, 1969, Reinard allegedly burglarized a United Farm Agency office building in Pasco County with intent to commit grand larceny. After jury tr…
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Appellant Gerard Charles Reinard appeals to this Court from an order denying a post-conviction motion to vacate and set aside a previous judgment and sentence entered against him pursuant to an adverse verdict of guilty after jury trial.
On August 20, 1969, information was filed in the Pasco County Circuit Court charging Reinard with having, on July 2, 1969, burglarized a certain office building known as United Farm Agency located on U.S. Highway 19 in said County, the property of one Ruford C. Cox, d/b/a United Farm Agency, with intent then and there to commit grand larceny. After trial by jury he was convicted of the offense as charged, and upon being adjudged guilty, was sentenced to a term of imprisonment in the State Prison.
Reinard filed notice of appeal to this 2nd District Court. In due course said appeal was perfected, and on October 2, 1970, this Court entered per curiam opinion affirming the conviction and sentence.
Several motions to vacate and set aside the judgment of conviction under the post-conviction rule were filed, and on November 8, 1971, Reinard filed notice of appeal in this 2nd District Court from an order of October 8, 1971, denying his latest motion to vacate the judgment and sentence. The instant case is in furtherance of the last mentioned notice of appeal. On January 24, 1972, in the present appeal brief was filed on behalf of Reinard by the local Public Defender duly appointed to *89represent him on the appeal wherein counsel stated:
“ . . . Attorney for Appellant made a diligent attempt to present law to the Court which would show that Appellant should not have been convicted of the crime. This is rather difficult in that he was traced from the scene of the crime and chased down by the victim, who eventually overturned his (Appellant’s) car in a wild chase on U.S. 19. Appellant was still in the car, or at the scene of the accident when he was arrested by police officers. No one could testify for sure that he was in the building, but his behavior was sufficient for any jury to find him guilty. For the reasons' stated herein, therefore, Attorney for the Appellant respectfully requests to be relieved as Attorney of Record on the grounds that this is a frivolous appeal and would cite as authority the case of Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 4931.”
Copy of the Public Defender’s brief was served upon Reinard, whereupon this Court, on February 9, 1972, entered order granting Reinard 30 days therefrom to file any additional brief he might desire calling this Court’s attention “to any matters that he feels should be considered in connection with the appeal in this cause”. Pursuant thereto Reinard filed brief on April 3, 1972, and a further brief on June 29, 1972. The latter brief was in reply to a brief filed by the Attorney General on behalf of the State on June 13, 1972.
In his brief of April 3, 1972, Reinard endeavors to raise various contentions, none of which have merit. He says that at the trial both the prosecuting attorney and the trial Judge called attention of the jury to the failure of Reinard to testify in his own behalf, he asserts that he was denied due process of law because no record was made of the closing arguments of counsel, he says the trial Judge committed error by making no findings of fact or conclusions of law in denying the instant motion to vacate, and that the trial Judge should have granted an evidentiary hearing upon his motion.
As to any comments by the trial Judge or the prosecuting attorney concerning the failure of Reinard to testify in his own behalf, suffice to say that no such showing of fact is made to appear here. No transcript of trial proceedings has been brought to this Court. As to the contentions regarding closing arguments to the jury and findings of facts and conclusions, they are not required.
Finally, even if properly authenticated to this Court, such contentions now made by Reinard could not be raised in a post-conviction proceeding for relief. They should have been raised at the trial level and then argued upon direct appeal.
For the aforesaid reasons, the order appealed from is — ■
Affirmed.
LILES and MANN, JJ., concur.
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Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975)…aring, this ground should have been raised on his direct appeal. Relief from a judgment of conviction under Rule 3.850 is not proper where the ground raised was presented on appeal or was properly presentable thereon. Reinard v. State, Fla.App.1972, 267 So. 2d 88; Koedatich v. State, Fla.App.1974, 287 So. 2d 738; Jenkins v. State, Fla.App.1972, 267 So. 2d 886. Affirmed.…
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Hughes v. State, 354 So. 2d 130 (Fla. 3d DCA 1978)…), wherein the following is found: sfc S}C * ifc * S(! “ * * * Relief from a judgment of conviction under Rule 3.850 is not proper where the ground raised was presented on appeal or was properly presentable thereon. Reinard v. State, Fla.App.1972, 267 So. 2d 88; Koedatich v. State, Fla. App.1974, 287 So. 2d 738; Jenkins v. State, Fla.App.1972, 267 So. 2d 886.” % ¡‡: ¡j« sf: ü: The appellant had a full appeal upon his conviction. The issues presented by the 3.850 petition either were or could have been p…
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Fulford v. State, 311 So. 2d 203 (Fla. 3d DCA 1975)…onclude that [*204] the grounds raised therein were properly presentable on appeal and thus we hold the trial judge properly denied defendant’s rule 3.850 motion. See Koedatich v. State, Fla.App.1974, 287 So. 2d 738; Reinard v. State, Fla.App. 1972, 267 So. 2d 88; Jenkins v. State, Fla.App.1972, 267 So. 2d 886. In addition, the record in the case sub judice reflects that court appointed defense counsel advised the trial judge that he did not believe that a RCrP 3.850 motion was the proper remedy and further…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)