Ferro v. State

488 So. 2d 179, 11 Fla. L. Weekly 1125, 1986 Fla. App. LEXIS 7792

• Court: District Court of Appeal of Florida
• Decided: May 13, 1986
• Docket: No. 86-1048
• Status: Published

Opinion

PER CURIAM.

The defendant appeals from the following order denying his motion for relief under Fla.R.Crim.P. 3.850:

1. In this cause, the Defendant was tried, and convicted for the first degree murder of his ex-wife, the attempted murder of his ex-mother-in-law and the attempted murder of a friend of the ex-wife.

2. Defendant’s Motion for Post-Conviction Relief asserts two grounds. His first claim for relief is that the trial court erred in allowing the prosecutor to comment in trial on his personal belief in the guilt or innocence of the Defendant. This is an issue which, as indicated in page 8 of Defendant’s memorandum in support of his 3.850 motion, was raised on appeal before the Third District Court of Appeal. As this matter could have been or was raised in the initial appeal, it is not an appropriate ground for relief in a Rule 3.850 Motion. Johnson v. State, 463 So.2d 207 (Fla.1985); O’Callaghan v. State, 461 So.2d 1354 (Fla.1984).

3. Defendant’s second ground for relief is that he was denied effective assistance of trial counsel when his attorney failed to make a timely objection to the improper comments by the prosecutor. Such failure, in itself, cannot be ground for finding ineffective assistance of counsel on a Motion for Post-Conviction Relief. State v. Stirrup, 469 So.2d 845 (Fla. 3rd DCA 1985); Anderson v. State, 467 So.2d 781 (Fla. 3rd DCA 1985).

IT IS THEREFORE ORDERED AND ADJUDGED that Defendant’s Motion for Post-Conviction Relief is hereby DENIED.

We entirely agree.

Affirmed.