Opinion
No. 72-692.
December 20, 1972.
Appeal from the Court of Record for Hillsborough County, Walter N. Burnside, Jr., J.
Judge C. Luckey, Jr., Public Defender, and Ralph Steinberg, Asst. Public Defender, Tampa, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant was convicted of robbery in the Criminal Court of Record in and for Hillsborough County. His conviction was affirmed on direct appeal to this court, 256 So.2d 421. He now appeals from the trial court's denial of post-conviction relief pursuant to F.R.Cr.P. 3.850, 33 F.S.A. The grounds argued as the basis of this appeal are the failure of the trial judge to instruct the jury on lesser included offenses and that the verdict was contrary to the law and evidence.
The facts of the case place it very near the fine line distinguishing larceny and robbery, Colby v. State, 1903, 46 Fla. 112, 35 So. 189, and while appellant's later ground might have presented a close question on a direct appeal, it is not now available. The legal sufficiency of the evidence to convict cannot be raised on post-conviction motion. Ramos v. State, Fla.App. 1971, 249 So.2d 728. Similarly, the failure to give an instruction is a matter which may be urged only on direct appeal and not in support of a motion for post-conviction relief. Lawson v. State, Fla.App. 1968, 215 So.2d 790.
Accordingly, the order of the trial judge denying relief pursuant to F.R.Cr.P. 3.850 is affirmed.
HOBSON and McNULTY, JJ., concur.