ALLEN WAYNE SUMMERSILL AND JAMES MONROE GANDY, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Appellants Summersill and Gandy sought to compel the trial court clerk to prepare a record on appeal according to their specifications and moved to dismiss their collateral attack appeal, claiming they had not received the complete trial record. The appellate court denied both motions as frivolous, finding that the appellants had already been provided with counsel, a direct appeal, and complete trial transcripts.
The court denied both motions, holding that appellants had already been furnished with counsel, a complete record on appeal, and appellate review, and that their motions were frivolous and without merit.
[1] A motion to compel the clerk of the trial court to prepare a record on appeal is properly denied when the requested record has already been provided or is otherwise avail…
[2] A motion to dismiss an appeal based on the alleged failure to furnish the entire record is properly denied when the record already contains transcripts of trial proceedin…
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Join FLexlaw to unlock all legal intelligence“the citizens of this State, having already shouldered the burden of furnishing these appellants with counsel for their trial; with counsel for a direct appeal; a copy of the complete record on appeal in the trial of their cause; a complete and full appellate review of their judgments of conviction; and a complete transcript of their postconviction proceedings, it is the judgment of this Court that the instant motions are frivolous and without merit.”
Establishes the court's rationale that appellants had already received substantial benefits from the state and their requests were baseless.
Summersill and Gandy were convicted and filed a collateral attack under Florida Criminal Procedure Rule 3.850 after their direct appeal was completed …
The full statement of facts, procedural history, and disposition for this case are member content.
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*190 On Motion to Compel the Circuit Court Clerk to Prepare the Record on Appeal and Motion to Dismiss Appeal
By motion, appellants seek an order from this Court compelling the clerk of the trial court to prepare a record on appeal in compliance with their directions. The instant appeal is from a denial by the trial court of movants-appellants’ “Amended Motion to Vacate Judgment and Sentence Pursuant to Florida Criminal Procedure Rule 3.850 [33 F.S.A.]”. The clerk of the trial court forwarded to this Court a complete transcript of the record pertaining to the collateral attack proceeding which was filed on April 30, 1973.
Appellants, in their directions to the Clerk, sought copies of every paper filed pertaining to them since their initial arrest, including a copy of the transcript of their trial proceedings. The records of this Court reflect that on the 25th day of January, 1972, in the case of Summersill and Gandy v. State,1 a direct appeal from the judgments of conviction now assailed on collateral attack, this Court entered an order allowing these appellants 30 days subsequent to receipt of the record on appeal from the public defender within which to file their pro se brief. Also, a certificate of mailing filed in this Court reflects that the public defender forwarded a complete record of the trial proceedings to appellants on the 26th day of January, 1972.
Subsequent to filing the first mentioned motion, appellants filed another motion in this court entitled “Motion to Dismiss Appeal” wherein they moved the Court to dismiss this appeal “without prejudice to re-plead the case”. The grounds for the latter motion is basically that the entire record of their initial trial has not been furnished to them.
By caveat, we have in the records the prior direct appeal including a transcript of proceedings at arraignment and a transcript of the trial proceedings. Another review of this file gives little if any comfort to appellants in the instant proceedings. The citizens of this State, having already shouldered the burden of furnishing these appellants with counsel for their trial; with counsel for a direct appeal; a copy of the complete recordi on appeal in the trial of their cause; a complete and full appellate review of their judgments of conviction; and a complete transcript of their postconviction proceedings, it is the judgment of this Court that the instant motions are frivolous and without merit.
The respective motions are denied.
RAWLS, C. J., and SPECTOR and JOHNSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Torresi v. Torresi, 263 So. 2d 303 (Fla. 3d DCA 1972)
- Barringer v. Castle A. Barringer, 263 So. 2d 303 (Fla. 1st DCA 1972)