FRED LYMAN BRUMBLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's convictions for three counts of robbery were affirmed, but the affirmance as to Count III was without prejudice to a future Rule 3.850 motion challenging trial counsel's failure to preserve the sufficiency-of-evidence issue.
A defendant cannot raise for the first time on appeal the issue of sufficiency of evidence when it was not raised in the trial court, but may later challenge trial counsel's failure to preserve such issues via a Rule 3.850 motion.
[1] An issue of sufficiency of evidence not raised in the trial court cannot be raised for the first time on direct appeal, but a defendant may preserve the right to challeng…
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PER CURIAM.
Appellant was found guilty by jury of three counts of robbery, was adjudged guilty and sentenced to 30 years imprisonment on each count, to run consecutively. Represented by the Public Defender, he appeals the judgments and sentences. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Public Defender has filed a brief reviewing the proceedings and trial below and stating that he has found no arguable point of reversible error which can be raised on direct appeal in this case. He further states that, in his opinion, the evidence adduced to prove Count III is arguably insufficient; that the only evidence to support Count III was the testimony of the alleged victim who was unable to testify that appellant was one of the robbers. He points out, however, that the issue of the sufficiency of the evidence as to that count was not raised in the trial court and, therefore, may not be raised for the first time on appeal. This is correct. See State v. Barber, 301 So. 2d 7 (Fla.1974).
The judgments and sentences are affirmed but pursuant to State v. Barber, supra, such affirmance as to Count III is without prejudice to appellant filing an appropriate motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.850 as to adequacy of his state appointed trial counsel in failing to preserve the issue of sufficiency of the evidence to sustain the conviction under Count III.
McCORD, C. J., and SMITH and MELVIN, JJ., concur.
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Kendrick Bernard James v. State, 745 So. 2d 1141 (Fla. 1st DCA 1999)…So. 2d 212 (Fla. 1st DCA 1988); Showers v. State, 570 So. 2d 377 (Fla. 1st DCA 1990). . See Tillman v. State, 471 So. 2d 32 (Fla. 1985), and the opinions cited in footnote 1. See also, Archer v. State, 613 So. 2d 446 (Fla. 1993); Brumbley v. State, 350 So. 2d 827 (Fla. 1st DCA 1977); Hornsby v. State, 680 So. 2d 598 (Fla. 2d DCA 1996).…
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BIR v. State, 405 So. 2d 1073 (Fla. 1st DCA 1981)…ance of counsel, a point which was not ruled upon by the trial court, by way of a motion for post conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850. Williams v. State, 350 So. 2d 1140 (Fla. 1st DCA 1977), and Brumbley v. State, 350 So. 2d 827 (Fla. 1st DCA 1977). Finally, it has come to our attention that the judgment and sentence incorrectly recites that appellant pled guilty to the crimes of armed robbery and sexual battery whereas the record reflects that he pled nolo contendere to…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)