RAYMOND RHOME, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a motion to vacate is not the proper remedy for denial of the right to appeal, and counsel's failure to seek discretionary certiorari does not violate the right to appeal.
Appellant was convicted of first-degree murder and sought to vacate the judgment, alleging his counsel failed to apply for a writ of certiorari or not…
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PER CURIAM.
This is an appeal from an order by the trial court denying a motion to vacate pursuant to CrPR 3.850, 33 F.S.A. Appellant originally was tried and convicted of first degree murder on April 29, 1969. He was sentenced to life imprisonment. Appellant now seeks to vacate the judgment upon the ground that his state-appointed counsel failed to apply for writ of certiorari with the Supreme Court of Florida or to notify the appellant of his right to apply for the same. This point is without merit.
First, we note that a motion to vacate under Rule 3.850 filed with the trial court is not the proper remedy where a defendant contends he has been denied his right to appeal. See Powe v. State, Fla.1968, 216 So. 2d 446; Baggett v. Wainwright, Fla.1969, 229 So. 2d 239. The proper remedy is to proceed by petition for a writ of habeas corpus.
Second, we do not think appellant’s right to appeal is violated when his counsel fails to seek a writ of certiorari or alternatively to notify his client of his right to apply for it. Certiorari is limited to specific situations in the Supreme Court, and is discretionary with that court. Fla. Const., Article V, § 3(b)(3), F.S.A. Therefore, for the reasons stated, the order appealed is affirmed.
Affirmed.
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Citator
Cited By
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Rhome v. State, 298 So. 2d 486 (Fla. 3d DCA 1974)…PER CURIAM. Affirmed on the authority of Rhome v. State, Fla.App. 1974, 293 So. 2d 761.…
Authorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Powe v. State, 216 So. 2d 446 (Fla. 1968)