EMORY HARVEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the grounds raised in the motion for post-conviction relief were either previously adjudicated, waived, or insufficiently pleaded to require an evidentiary hearing.
Appellant sought post-conviction relief, claiming his confession was involuntary, his identification was unduly suggestive, and he received ineffectiv…
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PER CURIAM.
This is an appeal from the denial, without an evidentiary hearing, of a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.
Initially, we note that appellant’s conviction of: (1) robbery; (2) aggravated battery; (3) possession of a firearm by a convicted felon; and (4) possession of a firearm during the commission of a felony were affirmed by this court in Harvey v. State, 362 So. 2d 714 (Fla.3d DCA 1978).
Appellant claims he is entitled to relief because: (1) his confession, which was admitted into, evidence, was involuntary; (2) his photographic identification was unduly suggestive; and (3) he received ineffective assistance from his court-appointed counsel.
The first two grounds were matters which could have been raised on direct appeal and thereby are unassailable in a collateral attack on the judgment. 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 one of the grounds is of constitutional dimension does not mean that a waiver may not occur. Clark v. State, 363 So. 2d 331 (Fla.1978); Sanford v. Rubin, 237 So. 2d 134 (Fla.1970).
The bare allegation of ineffective assistance of counsel without an allegation of prejudice to the defendant does not require an evidentiary hearing on a motion to vacate. State v. Barton, 194 So. 2d 241 (Fla.1967); Bell v. State, 164 So. 2d 28 (Fla.2d DCA 1964).
Affirmed.
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Williams v. State, 717 So. 2d 1066 (Fla. 2d DCA 1998)…We reverse. In its denial, the trial court concluded that a criminal “defendant who pleads guilty may appeal only those errors which would invalidate the plea itself,” referencing Robinson v. State, 373 So. 2d 898 (Fla.1979), and Harvey v. State, 383 So. 2d 770 (Fla. 3d DCA 1980). This principle may accurately describe the range of issues raised on direct appeal from a guilty plea; this proceeding in the trial court, however, was not a direct appeal, but a collateral attack on the plea itself and upon coun…
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Fair v. State, 403 So. 2d 1114 (Fla. 3d DCA 1981)…PER CURIAM. Affirmed. Foster v. State, 400 So. 2d 1 (Fla. 1981); Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980); Harvey v. State, 383 So. 2d 770 (Fla. 3d DCA 1980); Wedenfeller v. State, 355 So. 2d 193 (Fla. 1st DCA 1978).…
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Roth v. State, 385 So. 2d 114 (Fla. 3d DCA 1980)…the United States and Article I, Sections 16 and 22 of 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 pre…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- State v. Barton, 194 So. 2d 241 (Fla. 1967)
- Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975)
- McCLENDON v. State, 164 So. 2d 28 (Fla. 1st DCA 1964)
- Phillips v. State, 313 So. 2d 428 (Fla. 3d DCA 1975)
- Emory Harvey v. State, 362 So. 2d 714 (Fla. 3d DCA 1978)