Fuller v. Wainwright

Decision Date08 August 1972
Docket NumberNo. 71--95,71--95
Citation268 So.2d 431
PartiesEddie FULLER, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
CourtFlorida District Court of Appeals

Walter N. Colbath, Jr., Public Defender, and Norman J. Kapner, Asst. Public Defender, West Palm Beach, for petitioner.

Robert L. Shevin, Atty. Gen., Tallahassee, and Nelson E. Bailey, Asst. Atty. Gen., West Palm Beach, for respondent.

SALFI, D.J., Associate Judge.

Appellant was charged with breaking and entering a dwelling house with intent to commit a felony, to wit: rape. The crime occurred on the 28th of May 1967 and the information was filed on June 1, 1967. A jury returned a verdict of guilty as charged on the 6th day of September, 1967. The defendant attempted to appeal his judgment and sentence and signed his notice of appeal, (which was filed in proper person) on December 2, 1967 or within the 90 day appeal time. However, because he was in jail he was unable to get his signature notarized immediately and, as a result, did not get the notice of appeal filed until December 6, 1967 or 91 days after judgment. This Court, lacking jurisdiction, dismissed the appeal.

Thereafter, defendant filed two separate pro se petitions for writ of habeas corpus both of which were denied for failure to allege grounds for relief. Thereafter, this petition was filed which merely restated previous grounds which again are insufficient, but the State took the position that proper grounds do exist and could be alleged and that the defendant should be granted a delayed appeal by habeas corpus based on Powe v. State, Fla.1968, 216 So.2d 446; and McDaniel v. State, Fla.1969, 219 So.2d 421.

This Court agrees with the position of the State and for our own satisfaction have, on the 5th day of March 1971, ordered a habeas corpus proceeding for full appellate review on the authority of Hollingshead v. Wainwright, Fla.1967, 194 So.2d 577. Having now examined the record and the brief filed on appeal, we find no basis for a reversal of the judgment and sentence and for that reason we deny the petition for writ of habeas corpus.

Early in the morning on the 28th day of May 1967, a man identified as the defendant entered the bathroom window of the house of a Mrs. Smith, a 72 year old woman who was home alone because her husband was in the hospital. Mrs. Smith was awakened from a deep sleep by a hand over her mouth and an arm across her throat. She was told not to scream and that she would not be hurt but the defendant just wanted to have sexual relations with her. During the ensuing 20 minutes the defendant attempted three times to enter Mrs. Smith. During these occasions his head was within inches of her face. Mrs. Smith kept a bright night light in each of two bathrooms always lit. One bathroom was some 4 to 5 feet from her bed and the other bathroom was some 8 to 9 feet from her bed. The victim, Mrs. Smith, had no doubt in her testimony concerning the identity of the defendant as the one who was in her bed that morning.

On that same morning a police officer saw the defendant running on the border of an open area about 2 1/2 to 3 miles from the scene of the crime. Because the officer knew the defendant he gave him a ride home. On that same morning the defendant's mother's automobile was found abandoned bogged down in mud about 50 feet off the road in dense brush about 3 or 4 blocks from the scene of the crime. There was also testimony presented by a fingerprint expert who checked the scene between 6 and 7 A.M. on the morning of the crime and on the basis of a palmprint comparison, identified latent prints lifted off the window sill of the victim's house as being the defendant's.

The defendant relies upon two points for reversal of the jury verdict. The victim, Mrs. Smith had been shown a picture of the defendant the day before the trial and was told that the picture was of the defendant whom she would be asked to identify during the trial. Such action by the State, the defendant contends, violates the requirement of due process as set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

The net effect of these foregoing decisions is that any violation of ...

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6 cases
  • Simons v. State, MM-254
    • United States
    • Florida District Court of Appeals
    • October 7, 1980
    ...reinforced the witness's conviction in the identification she made, but did not induce the identification.7 See, Fuller v. Wainwright, 268 So.2d 431 (Fla. 4th DCA 1972), and Garrard v. State, 335 So.2d 603 (Fla. 3d DCA 1976); conviction in each case upheld, even though identifying witness w......
  • Robinson v. State, W--120
    • United States
    • Florida District Court of Appeals
    • January 26, 1976
    ...continuance based on a request for additional time to secure counsel has been held not to be an abuse of discretion. Fuller v. Wainwright, 268 So.2d 431 (Fla.App.4th 1972); Brown v. State, 224 So.2d 789 (Fla.App.3rd 1969). We hold the trial court committed no The Defendant's second point on......
  • Augsberger v. State, 93-03047
    • United States
    • Florida District Court of Appeals
    • May 19, 1995
    ...raised, we do not find on this record that the trial court abused its discretion in denying this request. See, e.g., Fuller v. Wainwright, 268 So.2d 431 (Fla. 4th DCA 1972). Finally, we conclude that the trial court's failure to advise appellant of his right to self-representation does not ......
  • Fuller v. State of Florida, 72-2803 Summary Calendar.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 15, 1973
    ...victim's in-court identification was based upon her recollection from the time of the offense, not upon the photograph. Fuller v. Wainwright, Fla.1972, 268 So.2d 431. The district court acted correctly in dismissing without prejudice appellant's habeas petition. So long as his direct appeal......
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