Merrill v. State, 364 So. 2d 42

PER CURIAM.

In our consideration of this appeal from the summary denial of appellant‘s Rule 3.850 motion, we have examined the record of appellant‘s direct appeal, Merrill v. State, 351 So.2d 411 (Fla. 1st DCA 1977), in addition to appellant‘s present contentions. Appellant‘s claim of relief based upon sufficiency of the evidence is without merit. This matter was raised on his previous appeal and thus does not set forth a proper ground for post-conviction relief. Pitts v. State, 355 So.2d 505 (Fla. 1st DCA 1978). The allegations concerning jury instructions attempt to raise matters which properly should have been raised on direct appeal. Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977). Further, the lack of objection to certain jury instructions by appellant‘s court-appointed counsel does not establish ineffective assistance of counsel since such matters fall within the judgment or strategy of counsel. See, e.g., Beckham v. State, 339 So.2d 221 (Fla. 3d DCA 1976). The trial court correctly denied appellant‘s motion without an evidentiary hearing.

SMITH, Acting C.J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.

Case Details

Case Name: Merrill v. State

Court Name: District Court of Appeal of Florida

Date Published: Oct 19, 1978

Citations: 364 So. 2d 42; KK-342

Docket Number: KK-342

Court Abbreviation: Fla. Dist. Ct. App.