177 SO2D 543 - Harris v. State

PER CURIAM.

¶1This is an appeal of an order denying a petition for relief under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.

¶2The appellant was indicted and tried for rape. He was found guilty by a jury which recommended mercy. He was then adjudged guilty and sentenced to life imprisonment.

¶3Examination of the numerous allegations in the motion reveals that many are conclusions of the movant unsupported by factual allegations and could have been summarily dismissed.1 Nevertheless, the trial court conducted a full evidentiary hearing at which appellant was present. We are impressed by the fact that the circuit court gave the appellant full opportunity to present his proof.

¶4 *544 As was pointed out in Johnson v. Zerbst2 and reiterated in Twining v. United States,3 the burden of proof is upon the appellant to prove his allegations. Such proof must overcome the presumption of validity which attends the judgment attacked.4 Appellant’s proof fell far short of sustaining his burden.

¶5No error in any respect having been made to appear the order of the trial court will stand affirmed.

¶6Affirmed.

¶7. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Sampson v. State, Fla.App.1963, 158 So. 2d 771; Smith v. State, Fla.App.1965, 176 So.2d 383 (Not yet reported, opinion filed June 22, 1965).

¶8. 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see also Russ v. State, Fla. 1957, 95 So.2d 594.

¶9. 321 F.2d 432 (C.O.A.5, 1963).

¶10. Notes 2 and 3 supra.