Stratos v. State

District Court of Appeal of Florida

Stratos v. State

167 So. 2d 771

CourtDistrict Court of Appeal of Florida

DecidedOctober 6, 1964

DocketNo. 63-785

StatusPublished

Cited by5 cases

This text of 167 So. 2d 771 (Stratos 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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Stratos v. State, 167 So. 2d 771 (Fla. Ct. App. 1964).

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Opinion

BARKDULL, Chief Judge.

This is an appeal from an order denying a petition for relief under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix.

The petition contained numerous grounds, all of which we find to be without merit, except that which alleges that the appellant was denied witnesses because of a statement by his court-appointed counsel that the court would not pay to have witnesses summoned for the defense. It has been held that the failure of counsel to call witnesses on behalf of the defense is a matter of personal judgment exercised by defense counsel, and is not a ground for collateral attack. See: Simpson v. State, Fla.App.1964, 164 So.2d 224; Jackson v. State, Fla.App.1964, 166 So.2d 195; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787; Frand v. United States, 10th Cir.1962, 301 F.2d 102, 104. However, in the instant case, the appellant [by his petition] avers that he was denied the assistance of witnesses upon the statement of his counsel that the court would not pay the costs of summoning same, which would be contrary to § 932.37, Fla.Stat., F.S.A.

Therefore, this matter is returned to the trial court solely to reexamine this allegation of the petition. The trial court’s action in denying all other relief sought by the said petition be and the same is hereby affirmed.

Affirmed in part; reversed in part and remanded with directions.

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BARKDULL, Chief Judge.

This is an appeal from an order denying a petition for relief under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix.

The petition contained numerous grounds, all of which we find to be without merit, except that which alleges that the appellant was denied witnesses because of a statement by his court-appointed counsel that the court would not pay to have witnesses summoned for the defense. It has been held that the failure of counsel to call witnesses on behalf of the defense is a matter of personal judgment exercised by defense counsel, and is not a ground for collateral attack. See: Simpson v. State, Fla.App.1964, 164 So.2d 224; Jackson v. State, Fla.App.1964, 166 So.2d 195; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787; Frand v. United States, 10th Cir.1962, 301 F.2d 102, 104. However, in the instant case, the appellant [by his petition] avers that he was denied the assistance of witnesses upon the statement of his counsel that the court would not pay the costs of summoning same, which would be contrary to § 932.37, Fla.Stat., F.S.A.

Therefore, this matter is returned to the trial court solely to reexamine this allegation of the petition. The trial court’s action in denying all other relief sought by the said petition be and the same is hereby affirmed.

Affirmed in part; reversed in part and remanded with directions.

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167 So. 2d 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stratos-v-state-fladistctapp-1964.

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