BOBBY ALLEN BRYANT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Bobby Allen Bryant appealed the trial court's denial of his motion to vacate his murder conviction and life sentence under Florida's Rule of Criminal Procedure 3.850. The court affirmed, rejecting Bryant's arguments that the trial court lacked authority to resentence him after his death sentence was commuted following Furman v. Georgia, that he was denied counsel at a preliminary hearing, and that his grand and petit juries were improperly selected.
The trial court had authority to resentence Bryant to life imprisonment as the only lawful sentence for first-degree murder after Furman. Bryant's jury selection claim failed due to lack of timely objection. Bryant's denial of counsel claim lacked merit because Coleman v. Alabama was not given retroactive application to prosecutions occurring before its decision.
[1] A resentencing to life imprisonment is permissible when the death penalty for first-degree murder is eliminated by judicial decision.
[2] Failure to make a timely objection to the selection of grand and petit juries waives the right to raise that issue on appeal.
Previewing 2 of 3 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“with the elimination of the death penalty for murder in the first degree, the only sentence which now could be imposed upon conviction of the crime of murder in the first degree is life imprisonment which is an automatic sentence and a reduction from the sentence previously imposed”
Establishes the court's rationale for upholding the resentencing to life imprisonment after Furman eliminated capital punishment
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Join FLexlaw to unlock all legal intelligenceIn 1969, Bryant was adjudicated guilty of first-degree murder and sentenced to death. Following the U.S. Supreme Court's decision in Furman v. Georgia…
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PER CURIAM.
Defendant-appellant seeks review of the trial court’s denial of his motion to vacate judgment and sentence pursuant to R.Cr.P. 3.850. In 1969 defendant was adjudicated guilty of murder in the first degree and sentenced to death. Following the U. S. Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), defendant’s death sentence was commuted and defendant was resentenced to life imprisonment. On June 11, 1974 appellant filed his motion to vacate in which he sought an immediate release or in the alternative a new trial. The motion was denied and this appeal followed. The three grounds contained in his motion to vacate now are presented as his points on appeal.
First, appellant contends that the trial court was without authority to resen-tence him. We can not agree.
The Florida Supreme Court in Anderson v. State, Fla.1972, 267 So. 2d 8 held that with the elimination of the death penalty for murder in the first degree, the only sentence which now could be imposed upon conviction of the crime of murder in the first degree is life imprisonment which is an automatic sentence and a reduction from the sentence previously imposed.
Appellant secondly urges as error the trial court’s denial of his motion to vacate alleging improper selection of defendant’s grand and petit juries. It affirmatively appears that appellant failed to make timely objection thereto and thus this point must fail. See State v. Silva, Fla.1972, 259 So. 2d 153.
Lastly defendant contends that he was denied counsel at his preliminary hearing thus the' trial court erred in denying his motion based upon this ground therefor. In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed 387, (1970) the U. S. Supreme Court held that a preliminary hearing was a critical stage of the prosecution so as to constitutionally require the furnishing of counsel to protect the rights of defendants. However in Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed 202 (1972) the Supreme Court decided that Coleman, supra should not be given retroactive application. Appellant’s prosecution being in 1969, we find this point of appellant is lacking in merit.
Accordingly the order of denial herein appealed is affirmed.
Affirmed.
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Bryant v. State, 971 So. 2d 818 (Fla. 3d DCA 2007)…was properly prosecuted as an adult.* [*820] The defendant has requested that the lower tribunal number be corrected. That point has merit. The defendant’s first degree murder case was one in which the death penalty was sought. See Bryant v. State, 307 So. 2d 921 (Fla. Sd DCA 1975). Under the numbering system in effect at the time, the correct lower tribunal number was 2532. We remand for correction of the lower tribunal number. Affirmed; remanded for correction of lower tribunal number. * Although not re…
Authorities Cited
- Furman v. Georgia, 408 U.S. 238 (U.S. 1972)
- Coleman v. Alabama, 399 U.S. 1 (U.S. 1970)
- Adams v. Illinois, 405 U.S. 278 (U.S. 1972)
- Earnest Eugene Anderson v. State, 267 So. 2d 8 (Fla. 1972)
- Des Moines Navigation & R.R. Co. v. Iowa Homestead Co., 123 U.S. 552 (U.S. 1887)
- State v. Silva, 259 So. 2d 153 (Fla. 1972)