Devoe v. State

226 So. 2d 264, 1969 Fla. App. LEXIS 5260

• Court: District Court of Appeal of Florida
• Decided: September 9, 1969
• Docket: No. 69-309
• Status: Published

Opinion

PER CURIAM.

Richard Floyd Devoe has appealed an order of the trial court denying his third motion made pursuant to Rule 1.850, Florida Rules of Criminal Procedure, 33 F.S.A. The order denying post-conviction relief was entered by the trial court without hearing upon a determination that the petitioner was not entitled to relief as a matter of law.

The movant-appellant urges that since his allegation that he was denied effective assistance of counsel is not refuted by the record, it was error for the trial court to deny his motion without a hearing. The appellant has filed in his own behalf an extensive brief which fully presents his position.

The State of Florida has moved to quash the appeal upon the ground that the record affirmatively shows that appellant had privately retained counsel at all critical stages in the proceedings before the trial court.

Inasmuch as the question presented is one which must be determined from the record upon which oral argument would be of no aid to this court, we examined the record and the appellant’s brief in the light most favorable to the appellant’s position, as though the case had been set for disposition on the merits without oral argument.

Having so examined the record and all appellate papers, and having given the appellant the benefit of every reasonable inference, this court holds that the order denying the appellant’s motion must be affirmed. See Coyner v. State, Fla.App. 1965, 177 So.2d 715; Davis v. State, Fla. App.1968, 209 So.2d 701.

Affirmed.