Brumbley v. State, 350 So. 2d 827

PER CURIAM.

Appellant was found guilty by jury of three counts of robbery, was adjudged guilty and sentenced to 30 years imprisonment on each count, to run consecutively. Represented by the Public Defender, he appeals the judgments and sentences. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Public Defender has filed a brief reviewing the proceedings and trial below and stating that he has found no arguable point of reversible error which can be raised on direct appeal in this case. He further states that, in his opinion, the evidence adduced to prove Count III is arguably insufficient; that the only evidence to support Count III was the testimony of the alleged victim who was unable to testify that appellant was one of the robbers. He points out, however, that the issue of the sufficiency of the evidence as to that count was not raised in the trial court and, therefore, may not be raised for the first time on appeal. This is correct. See State v. Barber, 301 So.2d 7 (Fla.1974).

The judgments and sentences are affirmed but pursuant to State v. Barber, supra, such affirmance as to Count III is without prejudice to appellant filing an appropriate motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.850 as to adequacy of his state appointed trial counsel in failing to preserve the issue of sufficiency of the evidence to sustain the conviction under Count III.

McCORD, C. J., and SMITH and MELVIN, JJ., concur.

Case Details

Case Name: Brumbley v. State

Court Name: District Court of Appeal of Florida

Date Published: Oct 17, 1977

Citations: 350 So. 2d 827; No. FF-217

Docket Number: No. FF-217

Court Abbreviation: Fla. Dist. Ct. App.