Opinion
No. 78-2130.
April 29, 1980. Rehearing Denied May 30, 1980.
Appeal from the Circuit Court, Dade County, David L. Levy, J.
Steven G. Glucksman, Miami, for appellant.
Jim Smith, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
Before HENDRY, NESBITT and BASKIN, JJ.
James H. Thomas appeals the denial of his motion for post-conviction relief alleging ineffective assistance of counsel and the denial by the court of his right to participate as co-counsel. We find no error and affirm the decision of the trial court.
The issue of defendant's right to participate as co-counsel was determined by this court to be without merit in Thomas v. State, 370 So.2d 1218 (Fla. 3d DCA 1979). That issue was therefore improperly raised in a subsequent motion to vacate. Epps v. State, 365 So.2d 179 (Fla. 1st DCA 1978).
Defendant's allegation of ineffective assistance of the public defender is refuted by the record. Defense counsel testified that he had discussed the case and defense theories with defendant. The trial court resolved any issue of credibility against defendant. Plymale v. State, 201 So.2d 85 (Fla. 3d DCA 1967). Defense counsel filed pre-trial motions, made objections during trial, cross-examined witnesses, argued a motion for judgment of acquittal, and requested specific jury instructions. Although defense counsel did not require defendant to testify, we find counsel's conduct of the trial to be acceptable trial strategy upon consideration of the impeachment value of the defendant's five prior felony convictions.
The decision of the trial court is therefore affirmed.