RAYMOND R. STALLINGS, APPELLANT (DEFENDANT),
v.
STATE OF FLORIDA, APPELLEE (STATE)
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Stallings appeals the denial of a motion to vacate his second-degree murder conviction and life sentence under Rule 3.850, arguing ineffective assistance of counsel and other trial errors. The court affirmed the denial, holding that most grounds could have been raised on direct appeal and the remaining claims were insufficiently pleaded or involved defense counsel's judgment calls.
The court affirmed the denial of the motion, finding that grounds which could have been raised on direct appeal are not proper collateral attack issues, bare allegations of perjury without accompanying facts are insufficient, and matters of trial and appellate counsel judgment and strategy are not grounds for collateral attack.
[1] A motion to vacate and set aside a judgment and sentence is properly denied when the matters raised could have been presented on direct appeal.
[2] A bare allegation that the State knowingly used perjured testimony to obtain a conviction, without accompanying facts, is insufficient to require an evidentiary hearing o…
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Join FLexlaw to unlock all legal intelligence“A motion to vacate and set aside judgment and sentence is properly denied when the matters could have been raised on direct appeal.”
Establishes the primary rule limiting Rule 3.850 collateral attacks to issues not available on direct appeal.
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Join FLexlaw to unlock all legal intelligenceStallings was convicted of second degree murder and sentenced to life imprisonment. His initial conviction was affirmed on direct appeal in Stallings …
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MILLS, Judge.
Stallings appeals from an order denying his motion to vacate and set aside the judgment and sentence adjudicating him guilty of second degree murder, and sentencing him to life. The sole issue is whether the trial court erred in its denial of the motion.
In Stallings v. State, 297 So. 2d 593 (Fla.App. 1st, 1974), this Court affirmed the trial court’s judgment and sentence. Thereafter, under Rule 3.850, Florida Rules of Criminal Procedure, Stallings filed a motion to vacate and set aside which the trial court denied without an evidentiary hearing.
Stallings’ motion alleged that (1) the State knowingly adduced perjured testimony which resulted in his conviction; (2) the trial judge interjected himself into the case by examining a witness; (3) the trial court permitted a witness to testify to a statement made by him without first determining that it was freely and voluntarily made; (4) the attorney representing him at the trial was ineffective and incompetent; and (5) the attorney representing him on direct appeal did not raise prejudicial errors for consideration by this Court.
A motion to vacate and set aside judgment and sentence is properly denied when the matters could have been raised on direct appeal. Peterson v. State, 237 So. 2d 223 (Fla.App. 1st, 1970). Grounds (2) and (3) of Stallings’ motion could have been raised on direct appeal. In addition, the record reflects that the trial court did no more than ask a witness several questions for the purpose of clarifying his previous answers, and that Stallings’ statement was freely and voluntarily made.
A motion which alleges that the State knowingly used perjured testimony to obtain a conviction without accompanying facts is insufficient to require an evidentiary hearing under Rule 3.850, Florida Rules of Criminal Procedure. State v. Matera, 266 So. 2d 661 (Fla.1972). For this reason, ground (1) was properly denied because the bare allegation set forth above is not supported by accompanying facts. Failure to call upon all of the defense witnesses to testify is a matter of personal judgment exercised by defense counsel, and is not a ground for collateral attack. Fuller v. Wainwright, 238 So. 2d 65 (Fla.1970). Likewise, the failure of counsel to object to the introduction of certain evidence, and failure to cross-examine a state witness as vigorously as a defendant desires are matters within the range of judgment and strategy of defense counsel, and are not grounds for collateral attack. For the above reasons, ground (4) was properly denied.
The record in Stallings’ direct appeal, supra, demonstrates that the attorney handling the appeal raised those errors which in his judgment were prejudicial, and after an adverse ruling, sought review by the Supreme Court which was dismissed. As this is a judgment matter, it is not a ground for collateral attack. Ground (5) was properly denied.
Affirmed.
BOYER, C. J., and McCORD, J., concur.
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Mitchell v. State, 381 So. 2d 760 (Fla. 5th DCA 1980)…rwise not authorized by law. [*761] It has repeatedly been held that relief under Rule 3.850 is not available as to any matters which could have been raised by direct appeal. Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970); Stallings v. State, 319 So. 2d 640 (Fla. 1st DCA 1975); Falagan v. State, 267 So. 2d 109 (Fla. 2d DCA 1972); Burau v. State, 353 So. 2d 1183 (Fla.3d DCA 1977). The trial court’s failure to receive or consider a pre-sentence investigation report prior to sentencing where such report…
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Wedenfeller v. State, 355 So. 2d 193 (Fla. 1st DCA 1978)…appeal to this Court. Wedenfeller v. State, 323 So. 2d 717 (Fla. 1st DCA 1975). Since the present matter could have been raised on direct appeal, this issue is not properly raised in a, motion to vacate the judgment and sentence. Stallings v. State, 319 So. 2d 640 (Fla. 1st DCA 1975); Ashley v. State, 350 So. 2d 839 (Fla. 1st DCA 1977). The order appealed is AFFIRMED. McCORD, C. J., and BOYER and SMITH, JJ., concur.…
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Ballard v. State, 362 So. 2d 54 (Fla. 3d DCA 1978)…PER CURIAM. Affirmed. State v. Matera, 266 So. 2d 661, 666-67 (Fla.1972); Ballard v. State, 323 So. 2d 297 (Fla. 3d DCA 1975); Stallings v. State, 319 So. 2d 640 (Fla. 1st DCA 1975); Phillips v. State, 313 So. 2d 428 (Fla. 3d DCA 1975); Fulford v. State, 311 So. 2d 203 (Fla. 3d DCA 1975); Morrison v. State, 283 So. 2d 137 (Fla. 2d DCA 1973); Yanks v. State, 273 So. 2d 401 (Fla. 3d DCA 1973); Ratliff v. State…
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. Matera, 266 So. 2d 661 (Fla. 1972)
- Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970)
- Fuller v. Wainwright, 238 So. 2d 65 (Fla. 1970)
- Stallings v. State, 297 So. 2d 593 (Fla. 1st DCA 1974)