State v. Jackson, 81-43

• Citation: 414 So.2d 281
• Decision Date: 26 May 1982
• Docket Number: No. 81-43,81-43
• Parties: STATE of Florida, Appellant, v. Calvin JACKSON, Appellee.
• Court: Court of Appeal of Florida (US)

Page 281

414 So.2d 281

STATE of Florida, Appellant, v. Calvin JACKSON, Appellee.

No. 81-43.

District Court of Appeal of Florida,

Fourth District.

May 26, 1982.

Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.

William N. Hutchinson, Jr., Fort Lauderdale, for appellee.

ANSTEAD, Judge.

This is an appeal by the state from a post-conviction order reducing the appellee's life sentence to time served plus three years probation. We reverse.

Calvin Jackson was convicted of rape and sentenced to life imprisonment in 1975. Thereafter, he filed an appeal, alleging among other points that the trial court had erred in allowing a police officer "to testify as to the contents of a B.O.L.O., to the effect that a black male in green pants was dragging a white female into the bushes." ¹ Subsequently, in a notice signed by Jackson himself, the appeal was voluntarily dismissed. In 1976 Jackson filed a motion to mitigate his sentence pursuant to the provisions of Florida Rule of Criminal Procedure 3.800(b) wherein he alleged that "he has seen the error of his ways, [and] is repentant and remorseful concerning the offense of which he was previously convicted." This motion was denied by the trial court. Finally, on June 20, 1980, Jackson filed the Motion to Vacate and Mitigate Sentence upon which the court acted in entering the order now being reviewed. ² This motion alleged in essence the same ground for relief asserted in the earlier appeal that had been voluntarily dismissed. On January 9, the same judge who had earlier presided over Jackson's trial and sentencing, and had denied the motion to mitigate, granted the motion and entered an order modifying Jackson's sentence. This appeal followed.

Initially, the appellee claims that this court lacks jurisdiction to review the trial court's order granting his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Rule 3.850 itself provides for an appeal from any order entered pursuant to its authority "as from a final judgment on application for writ of habeas corpus." In addition, Florida Rule of Appellate Procedure 9.140(c)(1)(F) authorizes appeals by the state from orders granting petitions for writ of habeas corpus and Rule 9.140(c)(1)(I) authorizes appeals from an alleged illegal sentence. All of these provisions would appear to apply here. In addition, the case law is clear that both sides have the right to appeal an order entered pursuant to a motion for post-conviction relief. Tolar v. State, 196 So.2d 1 (Fla. 4th DCA 1967); State v. Matera, 378 So.2d 1283 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980). We believe we do have jurisdiction to consider the state's appeal. We turn now to the merits.

No testimony was taken at the hearing. Rather, both parties apparently relied on the trial judge's recollection of the trial. As noted, this case was handled by the same trial judge throughout all the proceedings pertinent to the issues involved in this appeal. However, at the hearing counsel for appellee specifically advised the trial court that the basis of the pending motion was the same as that previously asserted on appeal:

The error which is the merit of my motion was, in fact, raised in the assignment of error, to-wit: Number 4, that the trial court erred in permitting, over objection, a policeman to testify as to the contents of a BOLO, to the effect that a black male in green pants was dragging a white female into the bushes.

On appeal the only argument made in appellee's brief on the merits is that the "granting of a Motion to Vacate and Mitigate Sentence pursuant to Rule 3.850 is within the sound discretion of this trial court." No other contentions on the merits in support of the trial court's action are advanced by the appellee. While we agree with appellee's contention that the trial court has some discretion in considering a motion for post-conviction relief, we conclude that the trial court erred in this instance. ³

First, motions for post-conviction relief are not to be utilized as substitutes for appeal. Issues that could and should have been raised on appeal cannot be raised in a motion for post-conviction relief. Foster v. State, 400 So.2d 1 (Fla.1981). In this case, both the record and the statement of appellee's counsel at the hearing in the trial court confirm that alleged error asserted in the motion for post-conviction relief could have been and was raised on appeal. However, appellee himself voluntarily dismissed his appeal, thereby waiving the errors asserted therein. He cannot now raise those same issues in a post-conviction motion filed in the trial court. Foster v. State.

In addition, even if we assume he was entitled to raise the issue, we believe the appellee failed to demonstrate prejudicial error in the trial court. ⁴ At the hearing the appellee claimed that the action of the trial judge in allowing a witness to testify that the alleged assailant was black and the victim was white improperly injected the issue of race into the trial and thereby violated the appellee's right to equal protection of the law under the Fourteenth Amendment to the United States Constitution. We agree with appellee that it would be improper for the state to rely on racial bias or prejudice in prosecuting any defendant, but we do not agree that there has been any demonstration that such was done in this case. In other words, we do not believe there is anything...