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Brumbley v. State

District Court of Appeal of Florida, First District
Oct 17, 1977
350 So. 2d 827 (Fla. Dist. Ct. App. 1977)

Opinion

No. FF-217.

October 17, 1977.

Appeal from the Circuit Court, Leon County, John A. Rudd, J.

Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.


Appellant was found guilty by jury of three counts of robbery, was adjudged guilty and sentenced to 30 years imprisonment on each count, to run consecutively. Represented by the Public Defender, he appeals the judgments and sentences. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Public Defender has filed a brief reviewing the proceedings and trial below and stating that he has found no arguable point of reversible error which can be raised on direct appeal in this case. He further states that, in his opinion, the evidence adduced to prove Count III is arguably insufficient; that the only evidence to support Count III was the testimony of the alleged victim who was unable to testify that appellant was one of the robbers. He points out, however, that the issue of the sufficiency of the evidence as to that count was not raised in the trial court and, therefore, may not be raised for the first time on appeal. This is correct. See State v. Barber, 301 So.2d 7 (Fla. 1974).

The judgments and sentences are affirmed but pursuant to State v. Barber, supra, such affirmance as to Count III is without prejudice to appellant filing an appropriate motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.850 as to adequacy of his state appointed trial counsel in failing to preserve the issue of sufficiency of the evidence to sustain the conviction under Count III.

McCORD, C.J., and SMITH and MELVIN, JJ., concur.


Summaries of

Brumbley v. State

District Court of Appeal of Florida, First District
Oct 17, 1977
350 So. 2d 827 (Fla. Dist. Ct. App. 1977)
Case details for

Brumbley v. State

Case Details

Full title:FRED LYMAN BRUMBLEY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Oct 17, 1977

Citations

350 So. 2d 827 (Fla. Dist. Ct. App. 1977)

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