Opinion
No. 63-785.
October 6, 1964.
Appeal from the Circuit Court for Dade County, George E. Schulz, J.
Robert L. Koeppel, Public Defender and W. Eugene Neill, Asst. Public Defender, for appellant.
James W. Kynes, Jr., Atty. Gen., and Victor V. Andreevsky, Asst. Atty. Gen., for appellee.
Before BARKDULL, C.J., and CARROLL and HORTON, JJ.
This is an appeal from an order denying a petition for relief under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix.
The petition contained numerous grounds, all of which we find to be without merit, except that which alleges that the appellant was denied witnesses because of a statement by his court-appointed counsel that the court would not pay to have witnesses summoned for the defense. It has been held that the failure of counsel to call witnesses on behalf of the defense is a matter of personal judgment exercised by defense counsel, and is not a ground for collateral attack. See: Simpson v. State, Fla.App. 1964, 164 So.2d 224; Jackson v. State, Fla.App. 1964, 166 So.2d 194; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787; Frand v. United States, 10th Cir. 1962, 301 F.2d 102, 104. However, in the instant case, the appellant [by his petition] avers that he was denied the assistance of witnesses upon the statement of his counsel that the court would not pay the costs of summoning same, which would be contrary to § 932.37, Fla. Stat., F.S.A.
Therefore, this matter is returned to the trial court solely to reexamine this allegation of the petition. The trial court's action in denying all other relief sought by the said petition be and the same is hereby affirmed.
Affirmed in part; reversed in part and remanded with directions.