Opinion
No. 70-910.
July 30, 1971.
Appeal from the Criminal Court of Record, Hillsborough County, Carl C. Durrance, J.
Walter R. Talley, Public Defender, and D. Turner Matthews, Asst. Public Defender, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and P.A. Pacyna, Asst. Atty. Gen., Tampa, for appellee.
Appellant Lowell Wayne Roberts brings to this Court for review an order entered by the trial Court denying his motion for post-conviction relief.
On February 23, 1966, appellant Roberts was informed against for the offense of manslaughter. On February 28, 1966, he was arraigned, entered plea of not guilty, and in due course was tried and convicted by a jury of the offense charged. He was adjudged guilty by the Court, and on April 11, 1966, was sentenced to serve a term of imprisonment in the State Prison.
On October 28, 1970, some four and a half years thereafter, he filed his motion in the trial Court under CrPR 1.850, 33 F.S.A., to vacate and set aside the judgment and sentence upon sundry grounds. On November 17, 1970, order was entered by the trial Court denying the post-trial motion. It is this order that Roberts now asks this Court to review. We affirm.
The order entered by the trial Court denying the motion for relief contains a finding by the Court that the instant motion by Roberts is the "second of its nature" filed by him and that it sets forth "no new facts not contained in the previous petition". It must be assumed, in the absence of anything to the contrary, that such previous motion was determined adversely on the merits against Roberts and also that the grounds urged in the previous motion were duplicated in the instant motion. This being true, the instant motion violates that portion of CrPR 1.850 which provides that "the sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." Upon this premise alone, the order here appealed was not erroneous. See Marshall v. State, Fla.App. 1969, 224 So.2d 723; Laboda v. State, Fla.App. 1970, 239 So.2d 107; Saunders v. State, Fla.App. 1970, 238 So.2d 680.
However, we have carefully considered the contentions of appellant Roberts on this appeal and find that they are clearly without merit; so the order appealed from is therefore —
Affirmed.
HOBSON and McNULTY, JJ., concur.