Opinion
No. 64-853.
June 22, 1965. Rehearing Denied July 29, 1965.
Appeal from the Criminal Court of Record, Dade County, Gene Williams, J.
Joseph Barton, in pro. per.
Earl Faircloth, Atty. Gen., and Herbert P. Benn, First Asst. Atty. Gen., for appellee.
Before BARKDULL, C.J., and TILLMAN PEARSON and SWANN, JJ.
The appellant was convicted of assault with intent to commit robbery, and on May 28, 1963 was sentenced to serve seven years in a state institution. No appeal was filed from this conviction.
On May 15, 1964 appellant filed a motion to vacate the judgment and sentence, alleging in essence that there was insufficient evidence to sustain the conviction. The trial court, after a hearing with the appellant present, denied the petition on July 31, 1964. On September 14, 1964, a second petition was filed, alleging essentially the same matters set forth in the first petition. On September 22, 1964, an order was entered denying the second petition. No appeal was filed from this order.
The appellant has appealed the order dated July 31, 1964, denying his petition to vacate the judgment and sentence.
This court, in Harris v. State, Fla. App. 1964, 167 So.2d 312, held that the contention that the evidence is insufficient to warrant conviction was a matter to be presented on an appeal and not by motion to vacate under Criminal Procedure Rule Number One, F.S.A. ch. 924 Appendix. See Austin v. State, Fla.App. 1964, 160 So.2d 730.
In addition, the allegations contained in the petition of May 15, 1964, were not factual, but were only conclusions of law and are therefore insufficient to support a motion to vacate the judgment. See Adams v. State, Fla.App. 1964, 164 So.2d 35; Dias v. State, Fla.App. 1963, 158 So.2d 766.
For the reasons stated, the action of the trial court is
Affirmed.