Pittman v. State, WW-87

• Decision Date: 29 July 1981
• Docket Number: No. WW-87,WW-87
• Citation: Pittman v. State, 401 So.2d 934 (Fla. App. 1981)
• Parties: Horace PITTMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 934

401 So.2d 934

Horace PITTMAN, Appellant, v.STATE of Florida, Appellee.

No. WW-87.

District Court of Appeal of Florida, First District.

July 29, 1981.

Joseph L. Hammons, Pensacola, for appellant.

Jim Smith, Atty. Gen., Miguel Olivella, Jr., Asst. Atty. Gen., for appellee.

McCORD, Judge.

This appeal is from an order denying appellant's motion for post-conviction relief pursuant to Rule 3.850,Florida Rules of Criminal Procedure.Alternatively, appellant requests that we treat this appeal as a petition for writ of habeas corpus and grant full appellate review of his conviction pursuant to Hollingshead v. Wainwright, 194 So.2d 577(Fla.1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882.We affirm and deny habeas corpus relief.

Appellant was convicted in 1977 of extortion.After final judgment, appellant retained a new attorney, and that attorney filed a motion for new trial and motion in arrest of judgment.Ultimately, appellant filed a notice of appeal after the trial court denied his motions.Because it was determined that the 30-day appeal period had lapsed, this Court dismissed Pittman's appeal, stating in part:

The state's motion to dismiss Pittman's appeal as untimely raises the question of whether the beginning of the 30-day appeal period in this criminal case was postponed by the filing of a motion in arrest of judgment within 15 days after the adjudication of guilt but 65 days after rendition of the jury verdict.The trial court entertained the motion in arrest of judgment but denied it on the merits; hence Pittman's appeal.We hold that Fla.R.Crim.P. 3.590 requires the filing of any motion in arrest of judgment within four days after the verdict in a jury trial, or by leave of the court within 15 days after the verdict; that the trial court is without power to entertain a Rule 3.590 motion in arrest of judgment thereafter; that absent a timely motion in this case, the appeal time began upon rendition of the judgment and sentence; and that this appeal must be dismissed.

Pittman v. State, 370 So.2d 1207 at 1207(Fla. 1st DCA1979), cert. dismissed, 375 So.2d 911(Fla.1979).

Appellant has now retained another attorney and filed this motion for post-conviction relief, contending that he had been prosecuted on an improperly amended information; that the prosecutor had made improper comments at trial, thereby denying him a fair trial; that his due process rights have been impaired due to a conflict of interest involving the state attorney; and that the trial court erred in denying a post-trial motion; that the statute, which he was accused of violating, was unconstitutional.The trial court, in denying the motion for post-conviction relief, found that each of the alleged errors was or should have been apparent to appellant at trial.Since these errors could have been raised on direct appeal, relief pursuant to Rule 3.850,Florida Rules of Criminal Procedure, is not available.Merrill v. State, 364 So.2d 42(Fla. 1st DCA1978), cert. denied, 372 So.2d 470(Fla.1979);Dismuke v. State, 388 So.2d 1324(Fla. 5th DCA1980).Upon our review of the record, we find no error in the trial court's denial of the motion.

In support of appellant's alternative prayer that we treat this appeal as a petition for writ of habeas corpus, pursuant to Hollingshead v. Wainwright, and grant full appellate review, he contends that his appeal was frustrated by state action.Pittman argues that the trial judge should have immediately dismissed his motions for new trial and arrest of judgment as untimely filed.Instead, the trial judge told his attorney to...