Albright v. State

239 So. 2d 641 | Fla. Dist. Ct. App. | 1970

PIERCE, Judge.

Appellant Elwood Lamar Albright appeals to this Court from an order denying his motion under CrPR 1.850, 33 F.S.A., to vacate a previous judgment and sentence entered and imposed upon him.

On September 28, 1965, Albright with another was informed against in the Hills-borough County Criminal Court of Record for the offense of armed robbery, and upon trial was found guilty of said offense by a jury on December 29, 1965. He was thereupon adjudged guilty and sentenced to serve a term of thirty years in the State Prison. He appeals said conviction to this Court, and on October 12, 1966, this Court, in an opinion written by Associate Judge Barns, affirmed the conviction. Since then he has filed numerous motions seeking to have the judgment and sentence set aside, finally culminating in a motion filed on February 10, 1970, in the trial Court to vacate the judgment and sentence under CrPR 1.8S0. On March 23, 1970, the motion was denied by the trial Judge without hearing on the ground it stated insufficient facts to warrant relief under the Rule. Albright now appeals to this Court from the order of denial.

In his current motion Albright contended in the trial Court, and now contends here, that (1) he was denied a sanity hearing at or before the trial, (2) he was denied a continuance of the trial which he asked for, and (3) the trial Judge failed to appoint “acceptable” counsel before trial.

The local Public Defender, duly appointed by the trial Court to represent Albright on this appeal, filed his brief in this Court setting forth that the grounds urged by Al-bright in his present motion under CrPR 1.850 before the lower Court and also before this Court are “the same grounds * * as in all of his previous motions and appeals” and that he could not in good conscience further prosecute this appeal here on behalf of Albright, observing that “Florida law prohibits the granting of a said motion where previous appeals have used the same grounds without merit.”

On June 23, 1970, pursuant to suggestions made by the U. S. Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, this Court entered order allowing Albright 30 days therefrom to “file an additional brief calling the Court’s attention to any matters that he feels should be considered in connection with the appeal in this cause”. On June 29, 1970, Albright filed herein a handwritten copy of “brief” on his behalf.

We have given careful and conscientious consideration to the contents of said “brief” as well as the entire record in both the instant appeal and the former direct appeal from the judgment and sentence and must conclude that reversible error has not been made to appear here. All the points now made and urged by and on behalf of Albright were decided and put to rest by the very excellent opinion written, by Associate Judge Barns, filed on October 12, 1966, and reported in Fla.App., 191 So.2d 65, in affirming the original conviction. That opinion speaks for itself and is conclusive of all matters now sought to be raised in the instant proceeding.

The order herein appealed is thereupon—

Affirmed.

HOBSON, C. J., and MANN, J., concur.