Opinion
No. 1625.
September 23, 1968.
Appeal from the Circuit Court for Palm Beach County, James C. Downey, J.
Cecil H. Albury, West Palm Beach, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Fred T. Gallagher, Asst. Atty. Gen., Vero Beach, for appellee.
This is an appeal from a denial of a post-conviction motion for relief after being convicted of first degree murder and sentenced to life imprisonment on February 3, 1966. We affirm.
It appears that no direct appeal was taken from this conviction and this is an appeal from a denial of a second motion for post-conviction relief on the ground that co-defendant "Joseph L[ee] Junior wanted to testify on the stand that the petitioner did not have anything to do with `it' but was refused."
The petitioner was represented by counsel at trial; he is represented by counsel on this appeal. Nothing is shown by the record that "Junior" was subpoenaed on behalf of the petitioner or called as a witness to testify for the petitioner or that the trial "refused" to permit "Junior" to testify on behalf of the petitioner other than the above language quoted from the post-conviction motion. A certificate from the clerk of the trial court shows that "Junior" was neither summoned nor called as a witness for the petitioner at trial.
The mere failure of an indigent's counsel to appeal a conviction is not a sufficient ground for post-conviction relief. Nelson v. State, Fla.App. 1968, 208 So.2d 506.
Affirmed.
REED and OWEN, JJ., concur.