ROOSEVELT GLENN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the legal sufficiency of evidence and failure to instruct on lesser included offenses cannot be raised in a post-conviction relief motion.
Appellant was convicted of robbery and appealed the denial of post-conviction relief. The grounds for relief were the trial judge's failure to instruc…
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Appellant was convicted of robbery in the Criminal Court of Record in and for Hillsborough County. His conviction was affirmed on direct appeal to this court, 256 So.2d 421. He now appeals from the trial court’s denial of post-conviction relief pursuant to F.R.Cr.P. 3.850, 33 F.S.A. The grounds argued as the basis of this appeal are the failure of the trial judge to instruct the jury on lesser included offenses and that the verdict was contrary to the law and evidence.
The facts of the case place it very near the fine line distinguishing larceny and robbery, Colby v. State, 1903, 46 Fla. 112, 35 So. 189, and while appellant’s later ground might have presented a close question on a direct appeal, it is not now available. The legal sufficiency of the evidence to convict cannot be raised on post-conviction motion. Ramos v. State, Fla.App.1971, 249 So.2d 728. Similarly, the failure to give an instruction is a matter which may be urged only on direct appeal and not in support of a motion for *24post-conviction relief. Lawson v. State, Fla.App.1968, 215 So.2d 790.
Accordingly, the order of the trial judge denying relief pursuant to F.R.Cr.P. 3.850 is affirmed.
HOBSON and McNULTY, JJ., concur.
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Citator
Cited By
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Lucion Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980)…the record to indicate that state action was involved in any denial of the right to appeal, Hollingshead v. Wainwright, 194 So. 2d 577 (Fla. 1967), and insufficiency of the evidence is not properly raised on a post-conviction motion, Glenn v. State, 271 So. 2d 23 (Fla. 2d DCA 1972). ROBERT P. SMITH, Jr., ERVIN and WENTWORTH, JJ., concur.…
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Morris v. State, 422 So. 2d 338 (Fla. 3d DCA 1982)…d a third ground, which amounts to a claim of insufficiency of the evidence; and a fourth contention alleges improper prosecutorial comment. Neither insufficiency of the evidence, Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980); Glenn v. State, 271 So. 2d 23 (Fla. 2d DCA 1972), nor prosecutorial comment, Adams v. State, 380 So. 2d 423 (Fla.1980); State v. Pittman, 401 So. 2d 934 (Fla. 1st DCA 1981), pet. for review denied, 412 So. 2d 469 (Fla.1982); Ashley v. State, 350 So. 2d 839 (Fla. 1st DCA 1977), a…
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Johnson v. State, 312 So. 2d 219 (Fla. 3d DCA 1975)…thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Cobbs v. State, Fla.App.1970, 241 So. 2d 178; Ramos v. State, Fla.App. 1971, 249 So. 2d 728; Glenn v. State, Fla. App. 1972, 271 So. 2d 23. Whereupon, the public defender’s said motion to withdraw is granted and the order or judgment is hereby affirmed.…
Authorities Cited
- Colbey v. State, 46 Fla. 112 (Fla. 1903)
- Reuel Lawson v. State, 215 So. 2d 790 (Fla. 2d DCA 1968)
- Ramos v. State, 249 So. 2d 728 (Fla. 2d DCA 1971)
- Rankin v. Louie L. Wainwright, 256 So. 2d 421 (Fla. 2d DCA 1972)
- Glenn v. State, 256 So. 2d 421 (Fla. 2d DCA 1972)