Opinion
No. 72-303.
October 4, 1972.
Appeal from the Court of Record for Hillsborough County, Harry Lee Coe, III, J.
W. Daniel Kearney, Asst. Public Defender, Bradenton, for appellant; Bobby Falagan, pro se.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
In this case appellant Bobby Falagan appeals to this Court from an order denying a motion to vacate a previous judgment and sentence entered against Falagan in said Court pursuant to an adverse trial, sentence of conviction, and adjudication of guilt entered in the trial Court on July 1, 1970, upon the charge as contained in the information. The sole assignment of error is that the trial Court should have ordered an evidentiary hearing upon the motion. We agree with the trial Court and affirm.
The information charged Falagan with the offense of armed robbery. Pursuant to the adverse verdict, he was sentenced to life imprisonment. Upon his post-conviction motion for relief he contends that he was entitled to have a jury instruction at his trial upon the lesser-included offense of larceny. But such contention is foreclosed to Falagan through a post-conviction proceeding because it is a matter which was or could have been raised on direct appeal, after being first duly presented to the trial Court and obtaining ruling thereon. Culberson v. State, Fla.App. 1969, 224 So.2d 363; Roberts v. State, Fla.App. 1970, 242 So.2d 191; Peterson v. State, Fla.App. 1970, 237 So.2d 223.
The order appealed denying the motion to vacate the judgment and sentence is therefore —
Affirmed.
LILES and MANN, JJ., concur.