GERALD DAVID YANKS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gerald Yanks appealed the denial of his motion to vacate a conviction for receiving stolen goods, arguing that the jury venire was improperly constituted under State v. Silva. The court affirmed the denial, holding that Yanks could not use a collateral attack motion to raise jury selection issues that were available for direct appeal.
The court held that a motion to vacate is not a substitute for direct appeal and that appellate courts will not consider matters raised by such a motion when those issues could have or should have been raised on direct appeal. The jury selection issue was waived because it was available but not raised in Yanks's direct appeal.
[1] A motion to vacate a conviction is not a substitute for a direct appeal.
[2] Appellate courts will not consider issues raised in a motion to vacate if those issues could have been raised on direct appeal.
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Join FLexlaw to unlock all legal intelligence“It has long been recognized that a motion 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.”
Establishes the core holding that collateral attack motions cannot be used to raise issues that should have been addressed on direct appeal.
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Join FLexlaw to unlock all legal intelligenceYanks was convicted of buying, receiving, and concealing stolen goods. Prior to trial, his attorney vigorously attacked the jury array and jury select…
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The appellant appeals the denial of his motion to vacate his conviction on the charges of buying, receiving and concealing stolen goods, known by him to be stolen. Appellant’s motion to vacate filed pursuant to CrPR 3.850, 33 F.S.A., was based, in part, upon the fact that the jury that found him guilty was of a venire that was found to be improperly constituted by the Supreme Court of Florida in the case of State v. Silva, Fla.1972, 259 So.2d 153. Appellant’s motion sought to take advantage of the decision reached in Silva, supra, by means of a collateral attack on his conviction.
We have reviewed the record very carefully and have concluded that we need not reach the merits of appellant’s contention. The record reflects that prior to appellant’s trial his attorney vigorously attacked the jury array and the method of jury selection in Dade County, Florida, as not strictly comporting with the provisions of § 40.01 (3), Fla.Stat., F.S.A.1 Appellant’s contentions were rej ected by the trial court and appellant was subsequently convicted of the offense charged. Appellant appealed from that conviction but did not assign as error or argue the challenge to the manner of selection of the jury. This court subsequently affirmed the conviction of appellant and certiorari was denied by our Supreme Court. See Yanks v. State, Fla.App.1972, 261 So.2d 533, cert. denied, Fla.1972, 266 So.2d 673.
Appellant now seeks by means of CrPR 3.850 and appeal from a denial thereof to have this court review a point that was before the trial court and could have been raised in appellant’s direct appeal. It has long been recognized that a motion 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.
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McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)…d 808 (Fla.1982); State v. Jackson, 414 So. 2d 281 (Fla. 4th DCA 1982); Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980); Tyner v. State, 363 So. 2d 1165 (Fla. 1st DCA 1978); Koedatich v. State, 287 So. 2d 738 (Fla. 3d DCA 1974); Yanks v. State, 273 So. 2d 401 (Fla. 3d DCA 1973), cert. denied, 277 So. 2d 288 (Fla.1973); McGriff v. State, 259 So. 2d 508 (Fla. 3d DCA 1972), cert. denied, 263 So. 2d 829 (Fla.1972); Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964). Therefore, a Rule 3.850 motion based upon…
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Hamm v. State, 380 So. 2d 1101 (Fla. 2d DCA 1980)…ppeal from the order of probation. Thus, in defending the denial of appellant’s motion, the state refers to the general principle that a defendant cannot raise those matters which he could have raised on appeal by a motion to vacate. Yanks v. State, 273 So. 2d 401 (Fla.3d DCA 1973). On the other hand, appellant points out that when the court placed him on probation the Third District Court of Appeal had not yet issued the Shead opinion and that as a consequence there were no appellate decisions in Florida wh…
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Brown v. State, 301 So. 2d 154 (Fla. 3d DCA 1974)…PER CURIAM. Affirmed. See Brown v. State, Fla.App.1972, 266 So. 2d 689; Yanks v. State, Fla.App.1973, 273 So. 2d 401; Jenkins v. State, Fla.App.1972, 267 So. 2d 886; Peterson v. State, Fla.App.1970, 237 So. 2d 223.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Silva, 259 So. 2d 153 (Fla. 1972)
- Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970)
- LEE v. State, 173 So. 2d 520 (Fla. 1st DCA 1965)
- Jenkins v. State, 267 So. 2d 886 (Fla. 2d DCA 1972)
- Yanks v. State, 261 So. 2d 533 (Fla. 3d DCA 1972)
- Johnson v. Dawson, 266 So. 2d 673 (Fla. 1972)
- Yanks v. State, 266 So. 2d 673 (Fla. 1972)