233 So. 2d 669 | Fla. Dist. Ct. App. | 1970
Appellant was informed against, tried by a jury and convicted of armed robbery on March 10, 1964. More than five years later he filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida seeking his release from prison. Upon consideration of that petition the judge of that court entered an order expressing the view that appellant was entitled at this late date to a full appellate review of his judgment of conviction and sentence. The order further opined that appellant should have the right to file a petition in the Circuit Court of Duval County seeking a declaration of the proper procedure to be followed in order to obtain the equivalent of a direct appeal. The Circuit Court of Duval County mistakenly construed this order to require that appellant be afforded a full appellate review of his judgment of conviction and sentence without further consideration as to whether such was authorized under the laws of this state. Patently, a United States District Judge possesses no lawful power or authority to issue mandates directing the courts of this state to take any affirmative action in matters falling within their constitutional jurisdiction. Based upon such misinterpretation
Appellant makes no contention that the evidence which establishes his guilt of the crime charged is insufficient to sustain the judgment of conviction. As is so frequently the case in today’s administration of criminal justice the fact that one charged with crime has been proved beyond all doubt to be guilty of the offense charged is considered to be secondary and treated as somewhat irrelevant when the convicted defendant pursues an appeal to a higher court. Freedom from the consequences of criminal conduct is more often sought on alleged deprivation of recently discovered constitutional rights or on legal technicalities created by court-made rules and decisions.
In the case sub judice appellant’s principal point on appeal challenges the legality of his judgment of conviction and asks that it be set aside because the trial court failed to instruct the jury on lesser offenses included within the offense of robbery with which he was charged. It is appellant’s contention that the statute which requires charges on lesser included offenses is mandatory,
In the case of Hand v. State
We have carefully considered the remaining point on appeal urged by appellant but find it to be without merit. The judgment appealed is affirmed.
. F.S. § 919.16, F.S.A.
. Hand v. State, (Fla.1967) 199 So.2d 100.
. Flagler v. State, (Fla.1967) 198 So.2d 313.
.Sloan v. State, (Fla.App.1969) 226 So. 2d 863; Jerry v. State, (Fla.App.1968) 213 So.2d 440; Brown v. State, (Fla. 1968) 206 So.2d 377.