Falagan v. State

District Court of Appeal of Florida

Falagan v. State

267 So. 2d 109, 1972 Fla. App. LEXIS 6114

CourtDistrict Court of Appeal of Florida

DecidedOctober 4, 1972

DocketNo. 72-303

StatusPublished

Cited by2 cases

This text of 267 So. 2d 109 (Falagan v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Falagan v. State, 267 So. 2d 109, 1972 Fla. App. LEXIS 6114 (Fla. Ct. App. 1972).

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Opinion

PIERCE, Chief Judge.

In this case appellant Bobby Falagan appeals to this Court from an order denying a motion to vacate a previous judgment and sentence entered against Falagan in said Court pursuant to an adverse trial, sentence of conviction, and adjudication of guilt entered in the trial Court on July 1, 1970, upon the charge as contained in the information. The sole assignment of error is that the trial Court should have ordered an evi-dentiary hearing upon the motion. We agree with the trial Court and affirm.

The information charged Falagan with the offense of armed robbery. Pursuant to 'the adverse verdict, he was sentenced to life imprisonment. Upon his post-conviction motion for relief he contends that he [110]*110was entitled to have a jury instruction at his trial upon the lesser-included offense of larceny. But such contention is foreclosed to Falagan through a post-conviction proceeding because it is a matter which was or could have been raised on direct appeal, after being first duly presented to the trial Court and obtaining ruling thereon. Culberson v. State, Fla.App.1969, 224 So.2d 363; Roberts v. State, Fla.App.1970, 242 So.2d 191; Peterson v. State, Fla.App.1970, 237 So.2d 223.

The order appealed denying the motion to vacate the judgment and sentence is therefore—

Affirmed.

LILES and MANN, JJ., concur.

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PIERCE, Chief Judge.

In this case appellant Bobby Falagan appeals to this Court from an order denying a motion to vacate a previous judgment and sentence entered against Falagan in said Court pursuant to an adverse trial, sentence of conviction, and adjudication of guilt entered in the trial Court on July 1, 1970, upon the charge as contained in the information. The sole assignment of error is that the trial Court should have ordered an evi-dentiary hearing upon the motion. We agree with the trial Court and affirm.

The information charged Falagan with the offense of armed robbery. Pursuant to 'the adverse verdict, he was sentenced to life imprisonment. Upon his post-conviction motion for relief he contends that he [110]*110was entitled to have a jury instruction at his trial upon the lesser-included offense of larceny. But such contention is foreclosed to Falagan through a post-conviction proceeding because it is a matter which was or could have been raised on direct appeal, after being first duly presented to the trial Court and obtaining ruling thereon. Culberson v. State, Fla.App.1969, 224 So.2d 363; Roberts v. State, Fla.App.1970, 242 So.2d 191; Peterson v. State, Fla.App.1970, 237 So.2d 223.

The order appealed denying the motion to vacate the judgment and sentence is therefore—

Affirmed.

LILES and MANN, JJ., concur.

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267 So. 2d 109, 1972 Fla. App. LEXIS 6114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falagan-v-state-fladistctapp-1972.

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