Whalen v. State

348 So. 2d 1230, 1977 Fla. App. LEXIS 16426

Opinion

PER CURIAM.

Following affirmance of his conviction by this court, Whalen v. State, 335 So.2d 631 (Fla.1st DCA 1976), Whalen filed in the trial court a motion to vacate the judgment and sentence on grounds including the alleged incompetence of his trial counsel. That motion and the files and records of the ease did not conclusively show Whalen not entitled to relief. Fla.R.Crim.P. 3.850. The trial court accordingly held a hearing. While the trial court’s order denying relief from the judgment and sentence was deficient in its failure to “make findings of fact and conclusions of law” concerning the alleged incompetency of Whalen’s trial counsel, no evidence was offered in support of Whalen’s contention and none is alluded to here except that which appears from our earlier opinion. The admitted lapses by Whalen’s trial counsel were not so egregious as to deny Whalen constitutional guaranties. McCrae v. State, 313 So.2d 429 (Fla.3d DCA 1975); Potts v. State, 242 So.2d 729 (Fla.2d DCA 1971).

AFFIRMED.

BOYER, Acting C. J., and MILLS and SMITH, JJ., concur.