Palmer v. State, s. 72--1034

• Decision Date: 05 February 1973
• Docket Number: Nos. 72--1034,72--1091,s. 72--1034
• Citation: 273 So.2d 135
• Parties: Chester Allen PALMER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 135

273 So.2d 135

Chester Allen PALMER, Appellant, v. The STATE of Florida, Appellee.

Nos. 72--1034, 72--1091.

District Court of Appeal of Florida, Third District.

Feb. 5, 1973.

Rehearing Denied March 5, 1973.

Chester Allen Palmer, in pro. per.

Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.

Before PEARSON, CHARLES CARROLL and HENDRY, JJ.

PER CURIAM.

Appeal No. 72--1034 is by the defendant below from denial of his third post-trial motion under Rule 3.850 CrPR, 33 F.S.A., for relief from a January 1968 robbery conviction. Appeal No. 72--1091 is an appellate review allowed to the defendant by this court, on his petition for habeas corpus contending that by state action he was thwarted in the taking of a direct appeal from an order denying his second post-trial motion for relief under Rule 3.850 CrPR.

On a direct appeal taken by the defendant from the judgment entered on the conviction of January 1968, this court affirmed. Dennis and Palmer v. State, Fla.App.1968, 214 So.2d 661. Application to the United States Supreme Court for review thereof by certiorari was denied (393 U.S. 1070, 89 S.Ct. 729, 21 L.Ed.2d 714)

A first motion for relief under Rule 3.850 CrPR was denied by the trial court, and no appeal was taken therefrom. On the defendant's second motion for relief under Rule 3.850 the defendant was returned to the trial court for hearing, and an evidentiary hearing was held thereon. That motion was denied and an appeal was taken on behalf of the defendant by the public defender. This court affirmed. Palmer v. State, Fla.App.1972, 264 So.2d 46. The present (habeas corpus) appeal No. 72--1091 presents for appellate review additional grounds or points not raised on the initial appeal from the order denying the second motion for relief. The new contentions presented in appeal No. 72--1091 relate to matters that were proper for presentation under the direct appeal that was taken. Although cumulative motions for post-conviction relief under Rule 3.850 CrPR appear to be entertained provided each succeeding motion presents some ground not previously stated (Whitney v. State, Fla.App.1966, 184 So.2d 207), that practice is not applicable to appeals. It is not permissible to file one appeal after another, stating separately a different ground in each successive appeal. We hold appeal No. 72--1091 is without merit, and again affirm the order to which it relates.

The defendant's third motion for post-conviction relief, which is here on direct appeal No. 72--1034, was summarily denied. Appellant contends the court erred by failing to grant an evidentiary hearing thereon. The points raised by the defendant in that motion for relief were (1) remarks made by the prosecutor claimed to have been prejudicial; (2) that defendant was not timely informed that his prior criminal record would be used against him; and (3) that the jury was called upon to consider the state of mind of a witness who did not testify. Upon examination of the record presented we are in agreement with the conclusion reached by the trial judge that the contentions thus made as grounds for relief from the conviction were...