Merrill v. State

• Decision Date: 19 October 1978
• Docket Number: No. KK-342,KK-342
• Citation: Merrill v. State, 364 So.2d 42 (Fla. App. 1978)
• Parties: Julius Ceasar MERRILL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 42

364 So.2d 42

Julius Ceasar MERRILL, Appellant, v. STATE of Florida, Appellee.

No. KK-342.

District Court of Appeal of Florida, First District.

Oct. 19, 1978.

Rehearing Denied Dec. 6, 1978.

Julius Ceasar Merrill, in pro. per., for appellant.

No appearance for appellee.

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,...