Capers v. State, 85-166
| Decision Date | 20 November 1985 |
| Docket Number | No. 85-166,85-166 |
| Citation | 10 Fla. L. Weekly 2606,479 So.2d 187 |
| Parties | 10 Fla. L. Weekly 2606 Lawrence CAPERS and Leonard Capers, Appellants. v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, and Louis M. Jepeway, Jr., Sp. Asst. Public Defender, for appellants.
Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
The order under review, which summarily denied appellants' motion for post-conviction relief on a holding that the claim is not cognizable in a proceeding brought pursuant to Florida Rule of Criminal Procedure 3.850, is reversed. Appellants' claim here, that they were denied the right to be present during a critical stage of the trial proceeding, may be raised in a post-conviction attack on the judgment of conviction. Cole v. State, 181 So.2d 698 (Fla. 3d DCA 1966). The cases relied upon by the State, Middleton v. State, 465 So.2d 1218 (Fla.1985) and Johnson v. Wainwright, 463 So.2d 207 (Fla.1985), hold, on this point, that denial of a rule 3.850 motion without a new evidentiary hearing is proper where the record of the prior trial conclusively establishes that petitioner is entitled to no relief.
In the earlier appeals from the convictions we declined to consider the "involuntary-absence-from-the-courtroom" claim because it had not been presented to the trial court. We instead specifically invited appellants to present the question by a motion for post-conviction relief. 1 That earlier disposition of the issue constitutes the law of this case, see State v. Stanley, 399 So.2d 371 (Fla. 3d DCA), rev. denied, 408 So.2d 1095 (Fla.1981), and is unaffected by subsequent supreme court decisions.
The motion for relief is sufficient on its face. On remand the trial court is to first consider the record to determine whether there is any merit to the claim. If the merit of the claim cannot be determined by examination of the record then an evidentiary hearing is required. The right reserved to appellants by our opinion in the prior appeal, to challenge their exclusion from the courtroom during critical stages of the trial, does not mandate a new evidentiary hearing. Middleton v. State; Johnson v. Wainwright.
Reversed and remanded.
1 Capers v. State, 433 So.2d 1324 (Fla. 3d DCA 1983), rev. denied, 444 So.2d 416 (F...
To continue reading
Request your trial
-
Mann v. Dugger
...was based in part on the jury's recommendation) cannot stand. 1 Mann refutes this proposition, arguing that in both Capers v. State, 479 So.2d 187, 188 (Fla.Dist.Ct.App.1985), review denied, 491 So.2d 280 (Fla.1986), and Cole v. State, 181 So.2d 698, 699-701 (Fla.Dist.Ct.App.1966), the defe......
-
Howard v. State
...least upon request. 1 See also Curtis v. State, 480 So.2d 1277 (Fla.1985); Francis v. State, 413 So.2d 1175 (Fla.1982); Capers v. State, 479 So.2d 187 (Fla. 3d DCA 1985). Surely Jones, in which the defendant was present at the point in question, is no authority for the majority's contrary c......
-
Marshall v. State
...issued January 12, 1990, thus establishing the law of the case. 4 See Love v. State, 559 So.2d 198, 200 (Fla.1990); Capers v. State, 479 So.2d 187, 188 (Fla. 3d DCA 1985), review denied, 491 So.2d 280 (Fla.1986). See generally State v. Stanley, 399 So.2d 371, 372 (Fla. 3d DCA), review denie......
-
State v. Capers
...280 491 So.2d 280 State v. Capers (Lawrence, Leonard) NO. 68,268 Supreme Court of Florida. MAY 27, 1986 Appeal From: 3d DCA 479 So.2d 187 Rev. ...