FRANKIE CLEMENTS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of Rule 3.850 motion to vacate murder conviction where defendant claimed lack of counsel at preliminary hearing, holding such grounds should have been raised on direct appeal and no prejudice was shown.
A defendant cannot obtain relief under Rule 3.850 for lack of counsel at a preliminary hearing when that ground was not raised on direct appeal and no prejudice is demonstrated in the record.
[1] Rule 3.850 relief is unavailable for grounds that were presented or properly presentable on direct appeal.
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Join FLexlaw to unlock all legal intelligenceFrankie Clements was convicted of first-degree murder by jury and sentenced to life imprisonment on June 23, 1973. His direct appeal affirmed the conv…
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PER CURIAM.
Frankie Clements was tried by a jury, convicted of murder in the first degree and sentenced on June 23, 1973, to life imprisonment in the state penitentiary. At trial he was represented by a special assistant public defender. Clements’ conviction was affirmed on appeal. Clements v. State, Fla.App.1973, 284 So. 2d 700. On his appeal he was represented by counsel. On October 25, 1974, the trial court denied Clements’ motion to vacate judgment and sentence pursuant to Rule 3.850, RCrP, 34 F.S.A. On Clements’ appeal from the trial court’s order denying the motion pursuant to the Rule, this court temporarily relinquished jurisdiction to the trial court for the appointment of counsel in the event of Clements’ insolvency. Counsel having been appointed by the trial court, this appeal ensued.
Clements contends that he was prejudiced by being denied counsel at his preliminary hearing. Assuming that he was without counsel at the preliminary hearing, the record does not reflect Clements suffered any prejudice. If Clements was prejudiced at the preliminary hearing, this ground should have been raised on his direct appeal. Relief from a judgment of conviction under Rule 3.850 is not proper where the ground raised was presented on appeal or was properly presentable thereon. Reinard v. State, Fla.App.1972, 267 So. 2d 88; Koedatich v. State, Fla.App.1974, 287 So. 2d 738; Jenkins v. State, Fla.App.1972, 267 So. 2d 886.
Affirmed.
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Skinner v. State, 366 So. 2d 486 (Fla. 3d DCA 1979)…nt and sentence under Fla.R.Crim.P. 3.850 in the Circuit Court for the Eleventh Judicial Circuit of Florida. We find no merit in the defendant’s contentions on this appeal save one. See: State v. Matera, 266 So. 2d 661 (Fla.1972); Clements v. State, 320 So. 2d 44 (Fla.3d DCA 1975); Phillips v. State, 313 So. 2d 428 (Fla.3d DCA 1975). In our view, the defendant’s sentence of life imprisonment for unarmed robbery exceeded the statutory maximum for such crime as provided in Section 812.-13(2)(c), 775.082(3)(c)…
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Amell v. State, 344 So. 2d 944 (Fla. 3d DCA 1977)…d the briefs, and have concluded that appellant has not presented any grounds which would entitle him to the relief sought. Suarez v. State, 220 So. 2d 442 (Fla. 3d DCA 1969); Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970); Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975). Therefore, the order appealed is affirmed. Affirmed.…
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Roth v. State, 385 So. 2d 114 (Fla. 3d DCA 1980)…f the Florida Constitution. We find this contention was a matter which could have been raised on direct appeal and is thereby unassailable in a collateral attack on a judgment. Harvey v. State, 383 So. 2d 770 (Fla. 3d DCA 1980); Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975); Phillips v. State, 313 So. 2d 428 (Fla. 3d DCA 1975). The fact that the basis of the defendant’s collateral attack is alleged to be one of constitutional dimension does not preclude a waiver by the failure to assert it on direct…
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
- Jenkins v. State, 267 So. 2d 886 (Fla. 2d DCA 1972)
- Clements v. State, 284 So. 2d 700 (Fla. 3d DCA 1973)
- Koedatich v. State, 287 So. 2d 738 (Fla. 3d DCA 1974)
- Lawrence v. Hethcox, 284 So. 2d 700 (Fla. 3d DCA 1973)
- Reinard v. State, 267 So. 2d 88 (Fla. 2d DCA 1972)