Opinion
No. 59731.
April 2, 1981.
Appeal from Circuit Court, Dade County; Gene Williams, Judge, Case No. 75-118A.
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Karen M. Gottlieb, Beth C. Weitzner and Robert R. Schrank, Asst. Public Defenders, Miami, for appellant.
Jim Smith, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., Miami, for appellee.
Appellant Lenson A. Hargrave brings this appeal to review the trial court's denial of his motion to vacate sentence under Florida Rule of Criminal Procedure 3.850. Appellant was sentenced to death for first-degree murder on July 18, 1975. His conviction and sentence were affirmed by this Court on direct appeal. Hargrave v. State, 366 So.2d 1 (Fla. 1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).
Hargrave filed his 3.850 motion to vacate and a motion for stay of execution on September 19, 1980. The trial court denied both motions ore tenus on September 26, 1980, followed by a written order filed on October 10, 1980. The 3.850 motion asserts a multitude of grounds for relief, from constitutional and non-constitutional error in the guilt phase of the trial to alleged fundamental defects in the sentencing process. The trial court found, and we so hold, that the issues raised by appellant either were or could have been raised on direct appeal, or they involve changes in decisional law not cognizable in a 3.850 motion. See Adams v. State, 380 So.2d 423 (Fla. 1980); Sullivan v. State, 372 So.2d 938 (Fla. 1979); Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); State v. Matera, 266 So.2d 661 (Fla. 1972); Witt v. State, 387 So.2d 922 (Fla. 1980), cert. denied, ___ U.S. ___, 101 S.Ct. 796, 66 L.Ed.2d 612.
On September 23, 1980, Hargrave brought a petition for writ of habeas corpus in this Court, alleging ineffective assistance of appellate counsel due to to counsel's failure to raise two issues on direct appeal. We denied the petition on September 24, 1980. Hargrave v. Wainwright, 388 So.2d 1021 (Fla. 1980).
Accordingly, the order of the trial court denying 3.850 relief is affirmed, and the motion for stay of execution pending disposition of this appeal is denied.
SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.