DONALD LEE PITTS, APPELLANT,
v.
ROBERT V. TURNER, APPELLEE
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Pitts sought delayed appellate review via habeas corpus of a trial court's denial of his post-conviction relief motion alleging an impermissible prosecutorial comment on his Fifth Amendment right to silence. The appellate court affirmed the denial, holding that such error must be preserved on direct appeal and cannot be raised for the first time in post-conviction relief.
The appellate court held that while a trial court need not grant a hearing on a successive post-conviction motion raising the same grounds as a previous motion, it must properly deny the motion and allow appellate review. More importantly, the court held that error based on an impermissible comment on a defendant's Fifth Amendment right must be preserved by raising it on direct appeal and cannot be raised for the first time in post-conviction relief.
[1] A trial court is not required to entertain a second or successive motion for post-conviction relief if it raises the same grounds as a previously decided motion.
[2] A petitioner is entitled to have a motion for post-conviction relief determined and to appellate review of that determination.
Previewing 2 of 4 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“Preservation of the error, in our opinion, would include raising the issue on appeal. The error cannot be raised for the first time in a motion for post-conviction relief.”
Establishes that Fifth Amendment waiver claims must be preserved on direct appeal and cannot be raised for the first time in post-conviction proceedings.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePitts was tried in 1975 and convicted. During trial, the prosecutor elicited testimony through a question that Pitts alleged constituted an impermissi…
The full statement of facts, procedural history, and disposition for this case are member content.
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ANSTEAD, Judge.
By way of a petition for writ of habeas corpus the appellant, Donald Lee Pitts, is seeking delayed appellate review of the trial court’s ruling on a motion for post-conviction relief.
Pitts filed a motion for post-conviction relief on May 31, 1977 alleging that during his trial in 1975 the prosecutor elicited an impermissible comment upon his Fifth Amendment right to remain silent. The comment as alleged is:
Q. This fellow didn’t give you any confession or anything like that after you advised him of his rights did he?
A. No sir, he did not. Appellant’s motion was denied by the trial court in an order of June 1, 1977 which stated:
The Defendant having on May 31, 1977 filed a Motion for Relief under RCrP 3.850, and the Court having carefully examined the file finds that the Defendant previously filed three similar Motions for the same relief, one or more of which has been denied by this Court on its merits, and the Court further finding that under the rule, it is not required to entertain and determine a second or successive Motion, it is upon consideration thereof, ORDERED AND ADJUDGED that the Court refuses to entertain the Defendant’s Motion.
Subsequently when the appellant filed a notice of appeal the trial court directed a letter to the court clerk as follows:
You have handed to me the Notice of Appeal, Directions to the Clerk, Assignments of Error and Affidavit of Insolvency signed by Donald Lee Pitts. I am not aware as to what disposition I am to make of these items so I re-enclosed them to you for whatever disposition you see fit to make. This Court will enter no orders in this proceeding in as much as I do not believe there is any authority for any further proceedings in this case either lower court or appellate.
The clerk informed the court in writing that no action would be taken pursuant to the court’s instructions and no notice of appeal was lodged in this court. The appellant ultimately filed the pending petition for writ of habeas corpus.
It is true that a hearing need not be granted on a motion for post-conviction relief which states the same grounds as a previous motion already decided by the court. However, the proper procedure in such a case is to deny the motion. The petitioner is entitled to have the motion determined and to appellate review of the determination. Neither were granted in this case. However, since it is clear that the trial court intended to deny the motion, we will treat the order as a denial and grant delayed appellate review.
The appellant alleged in his motion that he had never previously raised the issue of the alleged impermissible comment. In a recent decision the Florida Supreme Court has held that such error is waived if not properly preserved. State v. Bostic, 363 So. 2d 331, Fla. Supreme Court Case (1978). Preservation of the error, in our opinion, would include raising the issue on appeal. The error cannot be raised for the first time in a motion for post-conviction relief.
Accordingly, the order of the trial court denying the motion for post-conviction relief is hereby affirmed.
DOWNEY, C. J., and DAUKSCH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)…ot proper grounds, a motion under the Rule may also be summarily denied when it is based on grounds that have been raised in prior post-conviction motions under the Rule and have been decided adversely to the movant on their merits. Pitts v. Turner, 362 So. 2d 134 (Fla. 4th DCA 1978); Neal v. State, 349 So. 2d 844 (Fla. 2d DCA 1977); Mitchell v. State, 203 So. 2d 676 (Fla. 1st DCA 1967), cert. denied, 210 So. 2d 224 (Fla.), cert. denied, 392 U.S. 913, 88 S.Ct. 2073, 20 L.Ed.2d 1371 (1968); Coleman v. State, 1…
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Genter v. State, 377 So. 2d 834 (Fla. 3d DCA 1979)…er is entitled to no relief, the denial of his motion is affirmed. See: Neal v. State, 349 So. 2d 844 (Fla. 2d DCA 1977); Ashley v. State, 350 So. 2d 839 (Fla. 1st DCA 1977); Wedenfeller v. State, 355 So. 2d 193 (Fla. 1st DCA 1978); Pitts v. Turner, 362 So. 2d 134 (Fla. 4th DCA 1978); Edwards v. State, 364 So. 2d 119 (Fla. 1st DCA 1978); Epps v. State, 365 So. 2d 179 (Fla. 1st DCA 1978); Rule 3.850 R.Cr.P.…
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Matire v. State, 403 So. 2d 1049 (Fla. 4th DCA 1981)…ue on appeal. The trial court, after a hearing, denied his 3.850 motion. We affirm the trial court’s action since appellant’s failure to raise the issue on appeal precludes him from raising it for the first time in a 3.850 motion. Pitts v. Turner, 362 So. 2d 134 (Fla. 4th DCA 1978). This decision is without prejudice, however, to appellant filing a petition for habeas corpus in this court based upon an allegation of ineffective assistance of appellate counsel. Smith v. State, 400 So. 2d 956 (Fla. 1981); Kni…
Authorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)