CHESTER ALLEN PALMER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Chester Palmer appeals from the denial of his third post-trial motion for relief from a 1968 robbery conviction under Rule 3.850, and contests a habeas corpus review of his prior appeal from denial of a second such motion. The court affirms both appeals, holding that the grounds raised were either refuted by the record or should have been raised on direct appeal.
The court holds that the trial court properly denied the third motion without an evidentiary hearing because the contentions were refuted by the record and presented no reversible error. The court also holds that the habeas corpus appeal is without merit because it presents grounds that should have been raised on the direct appeal from the order denying the second motion, and successive appeals raising different grounds in each are impermissible.
[1] A defendant may not file successive appeals raising grounds that could have been presented in a prior direct appeal.
[2] Post-conviction relief motions may be entertained if each succeeding motion presents grounds not previously stated.
Previewing 2 of 6 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“Although cumulative motions for post-conviction relief under Rule 3.850 CrPR appear to be entertained provided each succeeding motion presents some ground not previously stated (Whitney v. State, Fla.App. 1966, 184 So.2d 207), that practice is not applicable to appeals. It is not permissible to file one appeal after another, stating separately a different ground in each successive appeal.”
Establishes the distinction between permissible successive post-trial motions and impermissible successive appeals, the key holding regarding the habeas corpus appeal.
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Join FLexlaw to unlock all legal intelligencePalmer was convicted of robbery in January 1968. He took a direct appeal which this court affirmed, and the U.S. Supreme Court denied certiorari. He t…
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Appeal No. 72-1034 is by the defendant below from denial of his third post-trial motion under Rule 3.850 CrPR, 33 F.S.A., for relief from a January 1968 robbery conviction. Appeal No. 72-1091 is an appellate review allowed to the defendant by this court, on his petition for habeas corpus contending that by state action he was thwarted in the taking of a direct appeal from an order denying his second post-trial motion for relief under Rule 3.850 CrPR.
On a direct appeal taken by the defendant from the judgment entered on the con*136viction of January 1968, this court affirmed. Dennis and Palmer v. State, Fla.App.1968, 214 So.2d 661. Application to the United States Supreme Court for review thereof by certiorari was denied (393 U.S. 1070, 89 S.Ct. 729, 21 L.Ed.2d 714)
A first motion for relief under Rule 3.850 CrPR was denied by the trial court, and no appeal was taken therefrom. On the defendant’s second motion for relief under Rule 3.850 the defendant was returned to the trial court for hearing, and an evidentiary hearing was held thereon. That motion was denied and an appeal was taken on behalf of the defendant by the public defender. This court affirmed. Palmer v. State, Fla.App.1972, 264 So.2d 46. The present (habeas corpus) appeal No. 72-1091 presents for appellate review additional grounds or points not raised on the initial appeal from the order denying the second motion for relief. The new contentions presented in appeal No. 72-1091 relate to matters that were proper for presentation under the direct appeal that was taken. Although cumulative motions for post-conviction relief under Rule 3.850 CrPR appear to be entertained provided each succeeding motion presents some ground not previously stated (Whitney v. State, Fla.App. 1966, 184 So.2d 207), that practice is not applicable to appeals. It is not permissible to file one appeal after another, stating separately a different ground in each successive appeal. We hold appeal No. 72-1091 is without merit, and again affirm the order to which it relates.
The defendant’s third motion for post-conviction relief, which is here on direct appeal No. 72-1034, was summarily denied. Appellant contends the court erred by failing to grant an evidentiary hearing thereon. The points raised by the defendant in that motion for relief were (1) remarks made by the prosecutor claimed to have been prejudicial; (2) that defendant was not timely informed that his prior criminal record would be used against him; and (3) that the jury was called upon to consider the state of mind of a witness who did not testify. Upon examination of the record presented we are in agreement with the conclusion reached by the trial judge that the contentions thus made as grounds for relief from the conviction were refuted on the record, and we hold that the motion was properly denied without evidentiary hearing. See Stanley v. State, Fla.App.1967, 203 So.2d 31. The contention of the appellant that the prosecutor made statements in argument which were prejudicial, and for which the judgment should be reversed, is not borne out by the record. Likewise the record here does not support the defendant’s contention that his prior criminal record was prejudi-cially used against him. The contention relating to the jury being required to consider the state of mind of a witness who did not testify, had reference to a comment by the prosecutor in argument that by pointing a gun at the victim and his mother the defendant had placed them in fear. The defendant contends that since the victim’s mother did not testify it was prejudicial to him to suggest that she was placed in fear by having a gun pointed at her. The record showed that the gun pointed at the woman was held close to her face. We find no reversible error there. Moreover, each of the three grounds referred to above were presentable on direct appeal which was taken from the judgment. For that reason, as well as the reasons set out above, we affirm in appeal No. 72-1034. Swindle v. State, Fla.App.1967, 202 So.2d 132; Peterson v. State, Fla.App.1970, 237 So.2d 223; Palmer v. State, supra, Fla.App.1972, 264 So.2d 46.
Affirmed.
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Citator
Cited By
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McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)…same judgment or sentence but stating substantially different legal grounds is permitted under the Rule and should not be summarily dismissed solely on the basis that the prisoner has previously filed another Rule 3.850 motion. See Palmer v. State, 273 So. 2d 135 (Fla. 3d DCA 1973); Roberts v. State, 250 So. 2d 918 (Fla. 2d DCA 1971); Piehl v. State, 173 So. 2d 723 (Fla. 1st DCA 1965), quashed on other grounds, 184 So. 2d 417 (Fla.1966); Archer v. State, 166 So. 2d 163 (Fla. 2d DCA 1964). As the foregoing d…
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Roberts v. State, 421 So. 2d 554 (Fla. 5th DCA 1982)…ively refuted Roberts’ allegations, nor did it show that this petition duplicates a petition filed in 1966. More than one petition for post-conviction relief may be entertained, provided each presents a ground not previously stated. Palmer v. State, 273 So. 2d 135 (Fla. 3d DCA 1973). I would reverse and remand for an evidentiary hearing. . Fla.R.Crim.P. 3.850. . Compare LeDuc v. State, 415 So. 2d 721 (Fla.1982), where the trial court denied defendant’s 3.850 motion which alleged ineffective assistance…
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Aesch v. State, 534 So. 2d 921 (Fla. 3d DCA 1988)…PER CURIAM. Affirmed. Aesch v. State, 516 So. 2d 117 (Fla. 3d DCA 1987); Aesch v. State, 500 So. 2d 153 (Fla. 3d DCA 1986); Siegel v. State, 289 So. 2d 764 (Fla. 3d DCA), cert. denied, 296 So. 2d 50 (Fla.1974); Palmer v. State, 273 So. 2d 135 (Fla. 3d DCA 1973).…
Authorities Cited
- Whitney v. State, 184 So. 2d 207 (Fla. 3d DCA 1966)
- Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970)
- Swindle v. State, 202 So. 2d 132 (Fla. 3d DCA 1967)
- Dennis v. State, 214 So. 2d 661 (Fla. 3d DCA 1968)
- Stanley v. State, 203 So. 2d 31 (Fla. 2d DCA 1967)
- Palmer v. State, 264 So. 2d 46 (Fla. 3d DCA 1972)
- Lynch v. Landy, 393 U.S. 1070 (U.S. 1969)
- Beverly v. Nelson, 393 U.S. 1070 (U.S. 1969)