177 So. 2d 23 | Fla. Dist. Ct. App. | 1965
This appeal "seeks reversal of an order denying a petition under Criminal Rule 1, F.S.A. ch. 924 Appendix, which attacked a conviction and sentence for the crime of second degree murder. The judgment and sentence were entered June 18, 1964. No appeal was taken during the 90-day period allowed for such, but instead, on September IS, 1964, the defendant petitioned for relief after judgment under Criminal Rule 1.
The trial judge committed no error in denying the petition, and we affirm. The petition claimed defendant’s attorney was incompetent and challenged the sufficiency of the evidence. The trial judge correctly concluded that the contention with reference to incompetence of counsel was insufficient upon which to predicate relief. See Sam v. State, Fla.App.1964, 167 So.2d 258; Simpson v. State, Fla.App. 1964, 164 So.2d 224. A contention of insufficiency of evidence to warrant conviction is a matter to be presented on appeal and not by motion to vacate under Criminal Rule 1. Austin v. State, Fla.App.1964, 160 So.2d 730; Harris v. State, Fla.App.1964, 167 So.2d 312; Barton v. State, Fla.App.1965, 176 So.2d 60S (opinion filed June 22, 1965).
Affirmed.