Roberts v. State

• Decision Date: 22 September 1982
• Docket Number: No. 82-414,82-414
• Citation: 421 So.2d 554
• Parties: Max Garland ROBERTS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 554

421 So.2d 554

Max Garland ROBERTS, Appellant, v. STATE of Florida, Appellee.

No. 82-414.

District Court of Appeal of Florida Fifth District.

Sept. 22, 1982.

Rehearing Denied Nov. 9, 1982.

Max Garland Roberts, pro se.

No Appearance for appellee.

PER CURIAM.

Roberts appeals from the denial of his motion to vacate his judgment and sentence, filed under the authority of Florida Rule of Criminal Procedure 3.850, alleging that his guilty plea was involuntary. The motion shows on its face that an earlier motion challenging the voluntariness of the plea was denied by the trial judge because of lack of evidence to support Roberts' allegations. The denial was affirmed on appeal. As to this ground, Roberts' present motion is duplicitous and was properly denied. Doerr v. State, 275 So.2d 592 (Fla. 4th DCA 1973).

The only allegations concerning ineffectiveness of Roberts' counsel deal with counsel's pursuit of Roberts' claim for post-conviction relief and are not proper grounds for setting aside his judgment and sentence.

AFFIRMED.

ORFINGER, C.J., and COWART, J., concur.

SHARP, J., dissents with opinion.

SHARP, Judge, dissenting.

I respectfully dissent. Roberts here appeals the lower court's denial of his pro se 3.850 motion ¹ to vacate judgment and sentence. I believe that, for the purpose of showing whether he is entitled to any relief, his motion is not totally insufficient on its face. ² He alleged both ineffective assistance of counsel, and more particularly, involuntariness of his guilty plea. Roberts claims he was under the influence of pain killing drugs when he entered his plea, and that his plea was not voluntary due to his diminished mental capacity. See Gunn v. State, 379 So.2d 431 (Fla. 2d DCA 1980). He attached copies of hospital records showing administration of considerable quantities of drugs.

The trial court simply denied Roberts' motion. It attached no records which conclusively refuted Roberts' allegations, nor did it show that this petition duplicates a petition filed in 1966. More than one petition for post-conviction relief may be entertained, provided each presents a ground not previously stated. Palmer v. State, 273 So.2d 135 (Fla. 3d DCA 1973). I would reverse and remand for an evidentiary hearing.

1 Fla.R.Crim.P. 3.850.

2 Compare LeDuc v. State, 415 So.2d 721 (Fla.1982), where the trial court denied defendant's 3.850 motion which alleged ineffective assistance of counsel and involuntariness of guilty plea. Defendan...