ALTON GLENN DICKENSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Alton Glenn Dickenson was convicted of assault with intent to commit murder in the second degree after being charged with the first-degree version. On appeal, he challenged the admission of his statements to police, the jury instruction on the lesser included offense, and his trial counsel's competence. The court affirmed the conviction, finding no reversible error on any ground.
The court held that no reversible error occurred. The admission of statements was proper as they were voluntarily made after the appellant was warned of his rights, and the appellant failed to timely pursue his motion to suppress. The instruction on the lesser included offense was proper as assault with intent to commit murder in the second degree is a valid lesser included offense. The claim of counsel incompetence has no merit as there was no action or inaction by trial counsel that cannot be reasonably explained.
[1] A trial court does not err by admitting inculpatory statements if the record supports a finding that the statements were voluntarily made after the defendant was fully wa…
[2] A defendant who requests a continuance of a motion to suppress and fails to subsequently request a hearing on that motion waives the right to a pretrial determination of…
Previewing 2 of 6 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“Unless fundamental error can be shown, an appellate court will not reverse a trial judge upon a matter which is not presented to him for a ruling.”
Establishes the procedural requirement that issues must be properly raised in the trial court before being reviewable on appeal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was charged with assault with intent to commit murder in the first degree. He was tried before a jury and found guilty of the included charg…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Pretrial Evidentiary Hearing cases and more on FLexlaw
The appellant was charged with the crime of assault with intent to commit murder in the first degree. He was tried before a jury, found guilty of the included charge of assault with intent to commit murder in the second degree, and sentenced to two and one-half years in the state prison. This appeal followed.
The points presented for reversal are: (1) the court erred in admitting appellant’s inculpatory statements to the arresting officers; (2) the court erred in instructing the jury concerning the included crime of assault with intent to commit murder in the second degree; (3) appellant was denied a fair trial because his privately retained counsel was incompetent.
The first point does not present reversible error. The record reveals ample evidence to support a finding that the statements were voluntarily made after appellant had been fully warned of his rights. It is urged that the court should have held a pretrial evidentiary hearing when appellant moved to suppress the statements. Of course, that is the proper procedure. See Rule 3.190(i), R.Cr.P., 33 F.S.A. The record in this case reveals that the court set defendant’s motions for hearing and disposition. Appellant, through his counsel, requested a continuance of the motion to suppress. The court granted a continuance on the condition that appellant’s counsel inform the court as soon as he was ready to proceed. No hearing was ever requested in connection with the continued motion. The cause proceeded to trial without objection or a request for a prior determination of the continued motion. Under these circumstances no error was committed. Unless fundamental error can be shown, an appellate court will not reverse a trial judge upon a matter which is not presented to him for a ruling. See Davis v. State, Fla.App.1969, 226 So.2d 257.
Appellant’s second point does not present error because assault with intent to commit murder in the second degree is a lesser included offense of the crime of assault with intent to commit murder in the first degree. See Bailey v. State, Fla.1969, 224 So.2d 296.
The third point urges that appellant should be granted a new trial because of the alleged incompetence of appellant’s privately retained trial counsel. Such an argument is not a ground for post-judgment relief. Cappetta v. Wainwright, Fla.1967, 203 So.2d 609; Belsky v. State, Fla.App. 1970, 231 So.2d 256. Nevertheless, we have examined the record and find no action or failure to act by appellant’s trial counsel that cannot reasonably be explained as a decision undertaken with the best interests of the appellant in mind. The proof of guilt was more than adequate and appellant’s testimony on the stand did not aid his cause. A conviction for a lesser included offense reflects effective assistance of counsel where the undisputed fact is that appellant shot the unarmed victim at close range after stating that he would do so.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
-
State v. Hinton, 305 So. 2d 804 (Fla. 4th DCA 1975)…s ever properly brought to the attention of the trial judge in his determination as to the legal sufficiency of the motion; an appellate court will not reverse a trial judge on a matter which is not presented to him for a ruling. Dickenson v. State, 261 So. 2d 561 (Fla.App.1972).…
-
Vagner v. Louie L. Wainwright, 398 So. 2d 448 (Fla. 1981)…l v. State, 213 So. 2d 293 (Fla. 2d DCA 1968); Ford v. State, 210 So. 2d 33 (Fla. 2d DCA 1968). The rule has also been applied when the issue of incompetence of retained counsel was raised on appeal of the judgment of conviction. Dickenson v. State, 261 So. 2d 561 (Fla. 3d DCA 1972). The Court in Cappetta did not discuss the rationale for the rule there embraced; the holding derives from a number of pre-Cappetta decisions. Williams v. State, 177 So. 2d 736 (Fla. 1st DCA 1965); Coyner v. State, 177 So. 2d 715…
-
State v. Rusti H. Osvath, 661 So. 2d 1252 (Fla. 3d DCA 1995)…t, 300 So. 2d 740 (Fla. 4th DCA 1974); Hernandez v. State, 273 So. 2d 130, 133 (Fla. 1st DCA), cert, denied, 277 So. 2d 287 (Fla.1973); Koedatich v. State, 263 So. 2d 631 (Fla. 3d DCA), cert, dismissed, 268 So. 2d 533 (Fla.1972); Dickenson v. State, 261 So. 2d 561 (Fla. 3d DCA 1972); Darrigo v. State, 243 So. 2d 171 (Fla. 2d DCA 1971); Davis v. State, 226 So. 2d 257 (Fla. 2d DCA 1969); Blotch v. State, 216 So. 2d 261, 264 (Fla. 3d DCA 1968), cert, denied, 225 So. 2d 532 (Fla.1969); Simpson v. State, 211 So. 2…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cappetta v. Louie L. Wainwright, 203 So. 2d 609 (Fla. 1967)
- Bailey v. State, 224 So. 2d 296 (Fla. 1969)
- Davis v. State, 226 So. 2d 257 (Fla. 2d DCA 1969)
- Belsky v. State, 231 So. 2d 256 (Fla. 3d DCA 1970)