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

District Court of Appeal of Florida·Decided November 17, 1986·No. No. BH-496·Published·Cited by 2 cases

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.

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

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