RENE EUGENE BURAU, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Burau sought reversal of an order denying his motion to vacate a five-year sentence for aggravated assault, claiming the trial judge was improperly influenced by adverse press publicity. The Florida District Court of Appeal affirmed the denial, holding that the ground for vacatur was known at sentencing and properly presentable on direct appeal, making the collateral motion procedurally defective.
The court affirmed the denial of the motion to vacate because the ground alleged—improper judicial influence from press publicity—was known to the defendant at the time of sentencing and was properly presentable on direct appeal. A motion to vacate cannot be used as a substitute for an appeal, and matters properly presented on appeal may not be asserted as grounds for collateral attack.
[1] A motion to vacate judgment and sentence may not be used as a substitute for a direct appeal.
[2] Matters that were known to the defendant at the time of trial cannot be asserted as grounds for a motion to vacate judgment and sentence.
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Join FLexlaw to unlock all legal intelligence“The motion to vacate in the case at bar is fatally defective because the ground alleged therein was (1) known to the defendant at the time of sentencing, and (2) properly presentable on a direct appeal which defendant could have taken.”
Establishes the core holding that matters known at sentencing and properly appealable cannot support collateral attack via motion to vacate.
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Join FLexlaw to unlock all legal intelligenceBurau was tried non-jury and found guilty of aggravated assault. At the July 8, 1975 sentencing hearing, with news media present, the judge indicated …
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HAVERFIELD, Judge.
Defendant, Rene Eugene Burau, seeks reversal of an order denying, without an evidentiary hearing, his motion to vacate judgment and sentence of five years in the state penitentiary on the ground that the trial judge had been unduly influenced by extensive prejudicial press publicity and, thus, imposed the sentence upon wrongfully considered criteria.
Defendant was tried non-jury and found guilty of aggravated assault. A pre-sen-tence investigation was ordered. At the conclusion of the sentencing hearing on July 8, 1975, at which several members of the news media were present at the request of the victim’s father, the judge indicated that he would withhold adjudication and defer sentencing for six months. Defendant was ordered to receive psychiatric treatment in the interim. Thereafter a barrage of adverse publicity ensued and the prosecution filed a motion to accelerate the date of sentencing. On July 14,1975 another sentencing hearing was held and the judge sentenced defendant to five years. Subsequently defendant filed a motion to mitigate his sentence and on October 28 the motion was denied. On May 14, 1976 defendant filed a motion to vacate sentence and adjudication pursuant to Fla.R.Crim.P. 3.850 on the ground that the trial judge was improperly influenced by the adverse publicity when he sentenced defendant to five years imprisonment. Defendant also requested an evidentiary hearing. The motion to vacate was summarily denied. We affirm.
The motion to vacate in the case at bar is fatally defective because the ground alleged therein was (1) known to the defendant at the time of sentencing, and (2) properly presentable on a direct appeal which defendant could have taken.
The established rule is that a motion to vacate judgment and sentence may not be used as a substitute for an appeal and matters properly presented on appeal may not be asserted as grounds for a motion to vacate. See Swindle v. State, 202 So. 2d 132 (Fla. 3d DCA 1967); Suarez v. State, 220 So. 2d 442 (Fla. 3d DCA 1969); Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975). Further, if the matter forming the basis of a motion to vacate was known to the defendant at the time of trial, it will not support a collateral attack on the judgment of conviction. State v. Matera, 266 So. 2d 661 (Fla.1972).
We also note that defendant has presented an incomplete record1 omitting matters necessary for this court’s determination of the alleged prejudicial error and, therefore, having failed to present a record showing a basis for reversal, is not entitled to such reversal. See Farrington v. State, 207 So. 2d 513 (Fla. 3d DCA 1968); Costantino v. State, 224 So. 2d 341 (Fla. 3d DCA 1969).
Affirmed.
. For example, the transcripts of the hearings of July 8 and 14, 1975 have been omitted.
PER CURIAM.
On petition for rehearing appellant has brought to our attention that the record on appeal was supplemented with the transcripts of the hearings on July 8 and 14, 1975. After a review of these transcripts we still adhere to our conclusion that defendant has failed to make reversible error appear. The petition for rehearing is denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Thompson v. Crawford, 479 So. 2d 169 (Fla. 3d DCA 1985)…t the time of the offenses. Cf. State v. Matera, 266 So. 2d 661 (Fla.1972) (where matter forming the basis of a motion to vacate known to defendant at time of trial, it will not support a collateral attack on judgment of conviction); Burau v. State, 353 So. 2d 1183 (Fla. 3d DCA 1977) (same). Based on the foregoing analysis, we conclude that Thompson’s fraudulent conduct constituted intrinsic fraud and cannot serve as a basis for holding that the trial court’s finding of not guilty by reason of insanity and th…
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Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980)…is defective where the ground alleged was known to the defendant at the time of sentencing and was properly presentable on a direct appeal which defendant did or could have taken. Johnson v. State, 364 So. 2d 118 (Fla. 1st DCA 1978); Burau v. State, 353 So. 2d 1183 (Fla. 3d DCA 1977). If the matter forming the basis of the motion to vacate was known to the defendant at the time of trial, it will not support a collateral attack on the judgment of conviction since such a motion may not be used as a substitute fo…
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Jackson v. State, 352 So. 2d 582 (Fla. 3d DCA 1977)…PER CURIAM. Affirmed. See: Burau v. State, 353 So. 2d 1183 (Fla. 3rd DCA 1977).…
Previewing 3 of 12 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)
- Costantino v. State, 224 So. 2d 341 (Fla. 3d DCA 1969)
- Swindle v. State, 202 So. 2d 132 (Fla. 3d DCA 1967)
- Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975)
- Farrington v. State, 207 So. 2d 513 (Fla. 3d DCA 1968)
- Efrain T. Suarez v. State, 220 So. 2d 442 (Fla. 3d DCA 1969)