Opinion
No. 80-1971.
September 2, 1981.
Appeal from Circuit Court, Broward County; Miette K. Burnstein, Judge.
Mark R. Baer of Law Offices of Mark R. Baer, Miami, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from a denial of appellant's 3.850 motion to set aside his 1968 murder conviction. The motion was based upon an improper comment on appellant's exercise of his right to remain silent made at trial. Though he moved at that time for a mistrial, the motion was denied, but appellant failed to argue the issue on appeal. The trial court, after a hearing, denied his 3.850 motion.
We affirm the trial court's action since appellant's failure to raise the issue on appeal precludes him from raising it for the first time in a 3.850 motion. Pitts v. Turner, 362 So.2d 134 (Fla. 4th DCA 1978). This decision is without prejudice, however, to appellant filing a petition for habeas corpus in this court based upon an allegation of ineffective assistance of appellate counsel. Smith v. State, 400 So.2d 956 (Fla. 1981); Knight v. State, 394 So.2d 997 (Fla. 1981).
BERANEK, GLICKSTEIN and HURLEY, JJ., concur.