McKelvin v. State

District Court of Appeal of Florida

McKelvin v. State

497 So. 2d 951, 11 Fla. L. Weekly 2389, 1986 Fla. App. LEXIS 10613

CourtDistrict Court of Appeal of Florida

DecidedNovember 17, 1986

DocketNo. BH-496

StatusPublished

Cited by2 cases

This text of 497 So. 2d 951 (McKelvin 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.

Bluebook

McKelvin v. State, 497 So. 2d 951, 11 Fla. L. Weekly 2389, 1986 Fla. App. LEXIS 10613 (Fla. Ct. App. 1986).

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Opinion

SHIVERS, Judge.

Defendant McKelvin has filed a pro se appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which he raises the issues of ineffective assistance of trial counsel and the voluntariness of his guilty plea. First, the issue of ineffective assistance of trial counsel may not be raised for the first time on direct appeal. Smolen v. State, 468 So.2d 518 (Fla. 1st DCA 1985). Second, the issue of the voluntariness of a guilty plea cannot be raised on direct appeal unless appellant has first made a motion to withdraw the plea in the trial court. Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979); Thomason v. State, 480 So.2d 713 (Fla. 2d DCA 1986); Chambers v. State, 491 So.2d 309 (Fla. 4th DCA 1986). Both issues, however, may properly be raised in a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. We therefore affirm the judgment and sentence, but do so without prejudice to appellant’s raising these two issues in a motion for post-conviction relief.

AFFIRMED.

SMITH and ZEHMER, JJ., concur.

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SHIVERS, Judge.

Defendant McKelvin has filed a pro se appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which he raises the issues of ineffective assistance of trial counsel and the voluntariness of his guilty plea. First, the issue of ineffective assistance of trial counsel may not be raised for the first time on direct appeal. Smolen v. State, 468 So.2d 518 (Fla. 1st DCA 1985). Second, the issue of the voluntariness of a guilty plea cannot be raised on direct appeal unless appellant has first made a motion to withdraw the plea in the trial court. Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979); Thomason v. State, 480 So.2d 713 (Fla. 2d DCA 1986); Chambers v. State, 491 So.2d 309 (Fla. 4th DCA 1986). Both issues, however, may properly be raised in a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. We therefore affirm the judgment and sentence, but do so without prejudice to appellant’s raising these two issues in a motion for post-conviction relief.

AFFIRMED.

SMITH and ZEHMER, JJ., concur.

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497 So. 2d 951, 11 Fla. L. Weekly 2389, 1986 Fla. App. LEXIS 10613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckelvin-v-state-fladistctapp-1986.

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