Pitts v. Turner, 78-911
| Decision Date | 06 September 1978 |
| Docket Number | No. 78-911,78-911 |
| Citation | 362 So.2d 134 |
| Parties | Donald Lee PITTS, Appellant, v. Robert V. TURNER, Appellee. |
| Court | Florida District Court of Appeals |
Donald Lee Pitts, pro se.
Robert L. Shevin, Atty. Gen., Tallahassee, Robert L. Bogen, Asst. Atty. Gen. and Kenneth G. Spillias, Legal Intern, West Palm Beach, for appellee.
By way of a petition for writ of habeas corpus the appellant, Donald Lee Pitts, is seeking delayed appellate review of the trial court's ruling on a motion for post-conviction relief.
Pitts filed a motion for post-conviction relief on May 31, 1977 alleging that during his trial in 1975 the prosecutor elicited an impermissible comment upon his Fifth Amendment right to remain silent. The comment as alleged is:
Q. This fellow didn't give you any confession or anything like that after you advised him of his rights did he?
A. No sir, he did not.
Appellant's motion was denied by the trial court in an order of June 1, 1977 which stated:
The Defendant having on May 31, 1977 filed a Motion for Relief under RCrP 3.850, and the Court having carefully examined the file finds that the Defendant previously filed three similar Motions for the same relief, one or more of which has been denied by this Court on its merits, and the Court further finding that under the rule, it is not required to entertain and determine a second or successive Motion, it is upon consideration thereof,
ORDERED AND ADJUDGED that the Court refuses to entertain the Defendant's Motion.
Subsequently when the appellant filed a notice of appeal the trial court directed a letter to the court clerk as follows:
You have handed to me the Notice of Appeal, Directions to the Clerk, Assignments of Error and Affidavit of Insolvency signed by Donald Lee Pitts. I am not aware as to what disposition I am to make of these items so I re-enclosed them to you for whatever disposition you see fit to make. This Court will enter no orders in this proceeding in as much as I do not believe there is any authority for any further proceedings in this case either lower court or appellate.
The clerk informed the court in writing that no action would be taken pursuant to the court's instructions and no notice of appeal was lodged in this court. The appellant ultimately filed the pending petition for writ of habeas corpus.
It is true that a hearing need not be granted on a motion for post-conviction relief which states the same grounds...
To continue reading
Request your trial
-
McCrae v. State
...raised in prior post-conviction motions under the Rule and have been decided adversely to the movant on their merits. Pitts v. Turner, 362 So.2d 134 (Fla. 4th DCA 1978); Neal v. State, 349 So.2d 844 (Fla. 2d DCA 1977); Mitchell v. State, 203 So.2d 676 (Fla. 1st DCA 1967), cert. denied, 210 ......
-
Matire v. State, 80-1971
...appellant's failure to raise the issue on appeal precludes him from raising it for the first time in a 3.850 motion. Pitts v. Turner, 362 So.2d 134 (Fla. 4th DCA 1978). This decision is without prejudice, however, to appellant filing a petition for habeas corpus in this court based upon an ......
-
Genter v. State, 79-2270
...DCA 1977); Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977); Wedenfeller v. State, 355 So.2d 193 (Fla. 1st DCA 1978); Pitts v. Turner, 362 So.2d 134 (Fla. 4th DCA 1978); Edwards v. State, 364 So.2d 119 (Fla. 1st DCA 1978); Epps v. State, 365 So.2d 179 (Fla. 1st DCA 1978); Rule 3.850 ...