Arline v. State, S--254

• Decision Date: 12 November 1974
• Docket Number: No. S--254,S--254
• Citation: Arline v. State, 303 So.2d 37 (Fla. App. 1974)
• Parties: Jake ARLINE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 37

303 So.2d 37

Jake ARLINE, Appellant, v.STATE of Florida, Appellee.

No. S--254.

District Court of Appeal of Florida, First District.

Nov. 12, 1974.

T. Paul Hodge, Sandstrom & Hodge, Fort Lauderdale, for appellant.

Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for appellee.

McCORD, Judge.

Appellant was found guilty by jury of assault with intent to commit a felony, murder in the first degree.He appeals from the judgment and sentence.Throughout the trial, appellant was represented by appointed counsel(an assistant public defender).On appeal he is represented by private counsel.

Appellant raises two, and only two, points on appeal as follows:

1.The defense presentation on behalf of the defendant was so manifestly deficient as to warrant remand for new trial.

2.The state, through its counsel, and the defendant, through his counsel, committed errors so fundamental and prejudicial as to deny the defendant a fair and impartial trial.

As to the first point, the question of inadequate representation of counsel must be raised preliminarily in the trial court and may not be raised for the first time on appeal.SeeChester v. State, Fla.App. (2d), 276 So.2d 76;State v. Barber, Florida Supreme Court, 301 So.2d 7, opinion filed June 12, 1974, rehearing denied September 18, 1974.The first point is, therefore, resolved against appellant but without prejudice to proceed under Rule 3.850, F.R.Cr.P.We call attention, however, to one of appellant's primary contentions under his first point.His counsel on appeal argues that he cannot now question the sufficiency of the evidence to support the conviction because appellant's trial counsel'did not preserve the right to such review by motion for directed verdict, motion for new trial or other motions, pre or post-trial.'The record shows that appellant's trial counsel moved for directed verdict at the close of the state's case in chief (though he did not again renew it at the close of all of the evidence).The record further shows that appellant's trial counsel filed a motion for new trial contending the verdict was contrary to the weight of the evidence which was denied.These motions were sufficient predicate for appellant to have questioned the sufficiency of the evidence on this appellate review (seeMancini v. State, Fla., 273 So.2d 371), but appellant's counsel has not raised this question here either by his brief or his assignments of error.Because of the circumstances, we have considered the sufficiency of the evidence under the following provision of Rule 6.16, F.A.R.:

'The court may also in its discretion, if it deems the interests of justice to require, review any other things said or done in the cause which appear in the appeal record, including instructions to the jury."

From our review of the record, we find the evidence sufficient to support the conviction.

As to appellant's second point, we have read the record, including the voir dire examination of the jury, the opening statements of counsel and their final arguments.We find no statements of counsel of...