Henderson v. State

Full title: NATHANIEL JETHRO HENDERSON, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Mar 15, 1966

183 So. 2d 872 (Fla. Dist. Ct. App. 1966)

Opinion

No. 65-660.

March 15, 1966.

Appeal from the Criminal Court of Record for Dade County, Jack A. Falk, J.

Nathaniel L. Barone, Jr., Miami, for appellant.

Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.

Before TILLMAN PEARSON, CARROLL and SWANN, JJ.

PER CURIAM.

The defendant, Nathaniel Jethro Henderson, appeals from the trial court's denial of his delayed motion for a new trial following a hearing on his petition for relief filed pursuant to Criminal Procedure Rule No. One, F.S.A. ch. 924 Appendix.

A previous appeal from the summary denial of this petition filed by the appellant herein was reversed and remanded in order that a full evidentiary hearing might be held. See Henderson v. State, Fla.App. 1965, 174 So.2d 73. The trial court conducted a full evidentiary hearing and determined that the appellant's right to appeal had been thwarted by the action of the public defender. At the conclusion of the hearing, the trial court allowed the appellant to make a delayed motion for a new trial. The grounds for the motion were that the judgment was contrary to the law and the evidence; that the defendant should have been entitled to a directed verdict of not guilty, and that the weight of the evidence was insufficient.

We have previously approved this procedure under Criminal Procedure Rule No. One, where it is evident that it was in the best interest of justice and fairness. Jackson v. State, Fla.App. 1964, 166 So.2d 194. Having proceeded in accordance therewith, the appellant's only argument is directed to the proposition that the relief granted was incorrect and that he should have either been discharged completely, or granted a new trial. We note, however, that this appeal is from the order which denied the delayed motion for new trial and that no grounds are argued to show that the trial court erred in denying the delayed motion for new trial.

Inasmuch as the appellant has now abandoned the grounds upon which the appeal was originally taken (Rule 3.7(i), Florida Appellate Rules, 31 F.S.A., and we find that there has been no showing of reversible error in the trial court's order denying the delayed motion for new trial, the judgment is therefore

Affirmed.