WILLIAM EDWARD DOERR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Doerr appealed the denial of his fourth Rule 3.850 motion to vacate his guilty plea conviction. The Florida District Court of Appeal affirmed the trial court's denial, finding that the motion lacked merit because most grounds were either previously adjudicated or legally insufficient.
The trial court's denial of the motion to vacate was properly affirmed. Although the trial court assigned an erroneous reason for denial (claiming all grounds were previously alleged), it reached the correct result because: (1) the involuntariness claim was duplicitous and had been previously adjudicated; (2) the ineffective assistance claim was factually insufficient; (3) the Boykin requirement for judicial inquiry was not retroactively applicable to Doerr's 1965 plea; and (4) deprivation of right to appeal is not a proper ground for a motion to vacate.
[1] A post-trial motion alleging grounds previously adjudicated on the merits is properly denied as duplicitous.
[2] A claim of ineffective assistance of counsel based on counsel pleading a defendant guilty without consent is refuted by the defendant's prior assertion that the plea was…
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Join FLexlaw to unlock all legal intelligence“the court reached the correct result in denying the present motion despite the fact that an erroneous reason was assigned”
Establishes that even though the trial court's stated rationale was wrong, the ultimate denial was correct
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Join FLexlaw to unlock all legal intelligenceDoerr entered a guilty plea on November 1, 1965. He filed multiple post-trial motions to vacate his conviction between 1966 and 1973, each raising var…
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Appellant’s fourth post-trial motion to vacate under Rule 3.850, RCrP, 33 F.S.A. (and its predecessors) was denied without an evidentiary hearing and it is that order which is appealed. We affirm.
The order denying the motion to vacate recites that the same is found to be without merit because the matters alleged therein had been alleged in one or more prior motions, and therefore did not need to be again considered by the Court. It appears, however, that of the four grounds set forth in the motion, only the first had been previously alleged and adjudicated on the merits. Nonetheless, the court reached the correct result in denying the present motion despite the fact that an erroneous reason was assigned.
The first ground of the motion was that the guilty plea was involuntary. Appellant’s third motion to vacate filed September 21, 1967 asserted this ground on essentially the same factual allegations. That motion was denied on the merits. The appeal from that order resulted in Case No. 1761 in this court, wherein we granted the State’s motion to quash the appeal as frivolous based upon an examination of the court reporter’s transcript of the proceedings at the time of entering the plea. As to this ground, the court correctly determined that it was duplicitous. For this reason the court was not required to again consider it. Chisholm v. State, Fla.App.1971, 247 So.2d 93.
The second ground of the motion was denial of effective assistance of counsel, a ground not theretofore asserted in prior motions. With one exception, the factual allegations in support of this ground were totally insufficient to show ineffective assistance of counsel. The exception is the allegation that counsel pled appellant guilty without his consent. This allegation, however, is clearly refuted by the allegations which appellant placed in his first motion to vacate filed September 23, 1966 (which became our Case No. 1154) to the effect that he entered his guilty plea “on the advice of the Public Defender”.
The third ground of the motion to vacate was that the record failed to show an adequate judicial inquiry as to the vol-untariness of the plea. The record does show an adequate judicial inquiry to determine that the plea was in fact voluntary, but appellant contends that such inquiry does not meet the requirements of Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Appellant’s guilty plea was entered November 1, 1965, and Boykin has been refused retroactive appli*594cation by the courts of this state. Odle v. State, Fla.App.1970, 241 So.2d 184; West v. State, Fla.App.1971, 249 So.2d 505.
The fourth ground of the motion to vacate is deprivation of right to appeal. This is not a proper ground for a motion to vacate. State v. Wooden, Fla. 1971, 246 So.2d 755.
Affirmed.
REED, C. J., and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Thomas v. State, 402 So. 2d 18 (Fla. 3d DCA 1981)…ourt on appeal from a denial of motion to vacate pursuant to Fla.R.Crim.P. 3.850.1 The argument raises five points on appeal; they are all basically a reargument of the first appeal and are hereby summarily denied on the authority of Doerr v. State, 275 So. 2d 592 (Fla. 4th DCA 1973); Clements v. State, 310 So. 2d 420 (Fla. 3d DCA 1975); Neal v. State, 349 So. 2d 844 (Fla. 2d DCA 1977). Affirmed. . See: Thomas v. State, 390 So. 2d 104 (Fla. 3d DCA 1980).…
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Gus Dallas v. The City OF Daytona Beach, 279 So. 2d 310 (Fla. 1973)…Certiorari denied. 275 So. 2d 592. CARLTON, C. J., and ROBERTS, ERVIN, McCAIN and DEKLE, JJ., concur.…
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Roberts v. State, 421 So. 2d 554 (Fla. 5th DCA 1982)…oluntariness of the plea was denied by the trial judge because of lack of evidence to support Roberts’ allegations. The denial was affirmed on appeal. As to this ground, Roberts’ present motion is duplicitous and was properly denied. Doerr v. State, 275 So. 2d 592 (Fla. 4th DCA 1973). The only allegations concerning ineffectiveness of Roberts’ counsel deal with counsel’s pursuit of Roberts’ claim for post-conviction relief and are not proper grounds for setting aside his judgment and sentence. AFFIRMED.…
Authorities Cited
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969)
- State v. Wooden, 246 So. 2d 755 (Fla. 1971)
- MAY v. State, 241 So. 2d 184 (Fla. 1st DCA 1970)
- West v. State, 249 So. 2d 505 (Fla. 2d DCA 1971)
- Ezoral Williams v. State, 247 So. 2d 93 (Fla. 3d DCA 1971)