JOSEPH NELSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Joseph Nelson appealed the denial of his fourth post-conviction motion for relief under Rule 3.850 from a 1967 robbery conviction. The Florida District Court of Appeal affirmed the trial court's summary denial, finding no basis for relief on any of the six grounds presented, including claims of suggestive lineup identification, ineffective assistance of counsel, and improper jury selection.
The court held that none of the six grounds presented basis for relief. The suggestive lineup claim failed because it occurred before the information was filed and federal precedent did not apply retroactively. The ineffective assistance of counsel claim was merely a matter of attorney judgment or strategy. The joinder issue had been previously raised and rejected. The judge's prior role as assistant state attorney did not create bias. The jury selection claim could not be raised in a post-conviction motion after being addressed on direct appeal.
[1] A suggestive lineup occurring prior to the filing of an information is not grounds for relief from a conviction, and federal cases concerning suggestive lineups are inapp…
[2] Failure of appointed counsel to summon and present certain witnesses, absent exceptional circumstances, is a matter of judgment or strategy for the attorney and does not…
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Join FLexlaw to unlock all legal intelligence“In absence of some exceptional circumstances, which do not appear here, the matter was one of judgment or strategy for the attorney handling the defendant's case.”
Establishes the standard for ineffective assistance of counsel claims in post-conviction motions—mere disagreement with strategy is insufficient without exceptional circumstances.
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Join FLexlaw to unlock all legal intelligenceNelson was convicted of robbery in 1967. He took a direct appeal which was affirmed. He then filed multiple post-conviction motions for relief under R…
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This is an appeal from an order of the criminal court of record of Dade County denying the appellant’s fourth motion filed under Rule 3.850 CrPR, 33 F.S.A., for relief from a 1967 judgment of conviction for robbery.
A direct appeal was taken by the defendant from the judgment of conviction, and this court affirmed (211 So.2d 246). The first post conviction motion for relief was denied after an evidentiary hearing. On *50appeal that order was affirmed (227 So.2d 533). Second and third motions for relief filed by the appellant were denied, and no appeal taken. The present motion for relief was summarily denied.
The grounds presented in this motion were six in number. First, that evidence submitted at trial as to identification should have been excluded because tainted by a suggestive line-up. That ground presented no basis for relief from the conviction. The line-up occurred prior to the filing of the information upon which the appellant was tried. Robinson v. State, Fla.App.1970, 237 So.2d 268. The federal cases relied on by the appellant1 were therefore inapplicable, and, moreover, they would not apply retroactively to this earlier trial and conviction.2 Second, it was contended the appellant was deprived of a fair trial because of failure of his appointed counsel to summon and present certain witnesses. In absence of some exceptional circumstances, which do not appear here, the matter was one of judgment or strategy for the attorney handling the defendant’s case.3 Third was a contention relating to the trial of the appellant with a co-defendant rather than by severance and separate trial. That point was made and rejected on the first motion for relief.4 The appellant’s fourth contention on the present motion was raised and denied by an order which this'court affirmed. See 227 So.2d 533. As a fifth ground the appellant contended he should have a new trial because the judge who ruled on his third motion under Rule 3.850 was the same person as the then assistant state attorney who had signed the information in 1967. The trial court properly held that contention was without merit. As a sixth ground of the motion for relief the appellant seeks to have this court reconsider and rule differently on his contention of improper jury selection, which was passed upon by this court adversely to the appellant on his direct appeal from the judgment of conviction. That ground was not proper to be presented in the current motion for relief.
On consideration of the foregoing in the light of the record and briefs, we hold no reason at law has been shown to disturb the order of the trial court which denied the appellant’s fourth motion for relief.
Affirmed.
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Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981)…ate, 227 So. 2d 527 (Fla. 1st DCA 1969), appeal dismissed, 237 So. 2d 175 (Fla. 1970). Included in this category is appellant’s complaint about rulings of the trial judge relating to the admissibility of certain evidence, see, e.g., Nelson v. State, 281 So. 2d 49 (Fla. 3d DCA 1973); Whitlow v. State, 256 So. 2d 48 (Fla. 2d DCA 1971); and the sufficiency of the evidence. See, e.g., Robinson v. State, 194 So. 2d 29 (Fla. 2d DCA 1967); Brooks v. State, 188 So. 2d 883 (Fla. 4th DCA), cert. denied, 192 So. 2d 496…
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Joseph v. State, 447 So. 2d 243 (Fla. 3d DCA 1983)…(resolving a conflict among the court’s own cases as to whether a valid counterclaim for abuse of process could be directed against process served in the main action). . See e.g., Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981); Nelson v. State, 281 So. 2d 49 (Fla. 3d DCA 1973); Whitlow v. State, 256 So. 2d 48 (Fla. 2d DCA 1971); Kish v. State, 253 So. 2d 889 (Fla. 3d DCA 1971); Sellers v. State, 249 So. 2d 519 (Fla. 3d DCA 1971); Garner v. State, 218 So. 2d 460, 463 (Fla. 2d DCA 1969); Paulk v. State, 2…
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Suarez v. State, 338 So. 2d 546 (Fla. 3d DCA 1976)…not sufficient to entitle the defendant to an evidentiary hearing. Absent extraordinary circumstances, failure of counsel to call a witness is not a ground for collateral attack. Swindle v. State, 202 So. 2d 132 (Fla. 3rd DCA 1967); Nelson v. State, 281 So. 2d 49 (Fla. 3rd DCA 1973). The record sub judice fails to demonstrate extraordinary circumstances. In addition, as a general rule, a defendant may not contest the competency of [*547] privately retained counsel. Everett v. State, 161 So. 2d 714 (Fla. 3rd…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Stovall v. Denno, 388 U.S. 293 (U.S. 1967)
- Gilbert v. California, 388 U.S. 263 (U.S. 1967)
- Simpson v. State, 164 So. 2d 224 (Fla. 3d DCA 1964)
- Whitney v. State, 184 So. 2d 207 (Fla. 3d DCA 1966)
- Robinson v. State, 237 So. 2d 268 (Fla. 4th DCA 1970)
- Bryson v. State, 211 So. 2d 246 (Fla. 3d DCA 1968)
- Nelson v. State, 227 So. 2d 533 (Fla. 3d DCA 1969)
- Ezoral Williams v. State, 247 So. 2d 93 (Fla. 3d DCA 1971)
- Chisholm v. State, 247 So. 2d 93 (Fla. 3d DCA 1971)