HERMAN JENKINS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Herman Jenkins appealed the denial of his motion to vacate a conviction for breaking and entering with intent to commit a misdemeanor. The court affirmed the denial, finding that all issues raised had either been previously rejected or should have been raised on direct appeal.
The court affirmed the denial of Jenkins' motion to vacate. The insufficiency of evidence claim was already addressed on direct appeal. The contention that the offense is a misdemeanor was rejected based on Brown v. State and Supreme Court precedent establishing it as a felony. The ineffective assistance of counsel claim was previously adjudicated.
[1] A motion to vacate and set aside a judgment and sentence is properly denied when the matters raised were or could have been raised on direct appeal.
[2] A defendant's contention that the evidence was insufficient to convict, having been previously adjudicated on direct appeal, cannot be raised in a subsequent motion to va…
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Join FLexlaw to unlock all legal intelligence“the motion to vacate and set aside the judgment and sentence was properly denied when the matters raised were or could have been raised on direct appeal”
Establishes the core principle that post-conviction relief motions cannot be used to relitigate issues from direct appeal
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Join FLexlaw to unlock all legal intelligenceJenkins was convicted in Polk County Criminal Court of breaking and entering with intent to commit a misdemeanor and sentenced to five years. His dire…
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Appellant Herman Jenkins, Jr., was convicted in the Criminal Court of Record for Polk County, Florida, of the offense of breaking and entering with intent to commit a misdemeanor, and sentenced to serve five years in the State Prison. His direct appeal to this Court was affirmed on July *88729, 1970. On September 16, 1970, Jenkins filed a motion to vacate and set aside the judgment and sentence under RCrP 3.850, 33 F.S.A. Said motion was denied, and on appeal to this Court, the order denying the motion was affirmed on March 19, 1971. On November 13, 1971, Jenkins filed another motion in the trial Court to vacate and set aside the judgment and sentence. On November 16, 1971, that motion was summarily denied and Jenkins has again appealed.
The Public Defender, appointed to represent Jenkins upon this appeal, has filed a brief in this Court stating that “Attorney for appellant has carefully examined the record on appeal and can find nothing which could arguably support an appeal.” For such reason the Public Defender “requests to be relieved as Attorney of record and would cite as authority the case of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493.”
On March 23, 1972, this Court caused a copy of said brief to be served upon appellant Jenkins, and entered an order allowing appellant thirty days within which to file an additional brief, if he so desired, calling this Court’s attention to any matters that he feels should be considered in connection with the appeal in this cause. He was later granted additional time within which to file his brief.
Pursuant thereto, on May 2, 1972, appellant filed a brief and on May 19, 1972, he filed a brief in reply to a brief filed by the Attorney General on behalf of the State on May 10, 1972.
In his motion filed in the lower Court Jenkins asked that his judgment and sentence be set aside because the evidence, which was based on circumstantial testimony, was insufficient to convict him.
This contention was passed upon by this Court in his direct appeal, reported in 237 So.2d 842. The motion to vacate and set aside the judgment and sentence was properly denied when the matters raised were or could have been raised on direct appeal, Culberson v. State, Fla.App.1969, 224 So.2d 363; Peterson v. State, Fla. App.1970, 237 So.2d 223; Roberts v. State, Fla.App.1970, 242 So.2d 191.
Jenkins next contended in his motion to vacate that breaking and entering with intent to commit a misdemeanor is a misdemeanor and not a felony, and therefore he was illegally convicted of a felony. He relied upon Brown v. State, Fla.App. 1970,232 So.2d 55.
Upon rehearing in Brown v. State, Fla. 1970, 237 So.2d 129, however, the Fourth District Court concluded that breaking and entering with intent to commit a misdemeanor under F.S. § 810.05 F.S.A. is a felony, and this decision was affirmed by the Supreme Court in 237 So.2d 129. This contention, therefore, is without merit, as evidently conceded by Jenkins in his brief.
In his reply brief Jenkins attempts to raise another point which was not raised in his motion to vacate, i. e., that he was deprived of his constitutional right to effective assistance of counsel on his direct appeal. This point, too, was passed on previously in our ruling on his first motion to vacate, reported in Jenkins v. State, Fla.App., 247 So.2d 487.
All other contentions Jenkins attempts to raise in his briefs have been previously adjudicated adversely by this Court, or should have been, but were not, raised on direct appeal.
For the aforesaid reasons, the order appealed is—
Affirmed.
HOBSON and MANN, JJ., concur.
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Citator
Cited By
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McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)…, a Rule 3.850 motion based upon grounds which either were or could have been raised as issues on appeal may be summarily denied. E.g., Foster v. State, 400 So. 2d 1 (Fla.1981); Edwards v. State, 364 So. 2d 119 (Fla. 1st DCA 1978); Jenkins v. State, 267 So. 2d 886 (Fla. 2d DCA 1972). In addition to issues that were raised on appeal and those which could have been raised, which are not proper grounds, a motion under the Rule may also be summarily denied when it is based on grounds that have been raised in pri…
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Yanks v. State, 273 So. 2d 401 (Fla. 3d DCA 1973)…on to vacate is not a substitute for a direct appeal and that an appellate court will not consider matters raised by such a motion when those issues could have or should have been raised by means of direct appeal. See Jenkins v. State, Fla.App.1972, 267 So. 2d 886; Peterson v. State, Fla.App.1970, 237 So. 2d 223; Lee v. State, Fla.App.1965, 173 So. 2d 520. Therefore, for the reasons stated, the order denying appellant’s motion to vacate is hereby affirmed. Affirmed. . Fla.Stat., § 40.01(3), F.S.A., provide…
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Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975)…tion 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.…
Previewing 3 of 7 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)
- Calloway Brown v. State, 232 So. 2d 55 (Fla. 4th DCA 1970)
- Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970)
- Calloway Brown v. State, 237 So. 2d 129 (Fla. 1970)
- Roberts v. State, 242 So. 2d 191 (Fla. 3d DCA 1970)
- Owens v. State, 224 So. 2d 363 (Fla. 4th DCA 1969)
- Thadeaus R. Culberson v. State, 224 So. 2d 363 (Fla. 2d DCA 1969)
- Jenkins v. State, 247 So. 2d 487 (Fla. 2d DCA 1971)
- Tobis v. Tobis, 237 So. 2d 842 (Fla. 2d DCA 1970)
- McTAGUE v. McTAGUE, 237 So. 2d 842 (Fla. 3d DCA 1970)