Browning v. State , 1975 Fla. App. LEXIS 14638 ( 1975 )

SCHEB, Judge.

This is an appeal from an order of the lower court denying a motion to vacate and set aside judgment and sentence pursuant to RCrP 3.850.

On July 24, 1972, appellant voluntarily entered a plea of guilty to a charge of third degree murder and was sentenced to a term of fifteen years imprisonment. On September 1, 1972, appellant filed a motion pursuant to RCrP 3.850 alleging he was incompetent to stand trial at the time of his pica. The motion was denied without an evidentiary hearing and such denial was affirmed by this court on May 9, 1973. Browning v. State, Fla.App.2d 1973, 277 So.2d 325, cert. dismissed, Fla., 287 So.2d 96.

Appellant filed a second motion pursuant to RCrP 3.850 on August 20, 1974, this time alleging insanity at the time of the crime. The lower court, finding the grounds set forth in the second motion to be the same as in the prior RCrP 3.850 motion, denied appellant’s second motion without an evidentiary hearing.

Appellant argues the lower court erred in denying the second RCrP 3.850 motion by invoking the successive petition rule. See, Fields v. State, Fla.App.3d 1967, 202 So.2d 226; Sparks v. State, Fla.App. 4th 1972, 262 So.2d 251.

Irrespective of the reason assigned by the lower court for denial of the second RCrP 3.850 motion, the question which appellant seeks to raise was foreclosed by his plea, since a plea of guilty, made voluntarily in a criminal case, constitutes a waiver of all non-jurisdictional defects. White v. State, Fla.App.2d 1973, 273 So.2d 782; Monge v. State, Fla.App.3d 1973, 286 So.2d 34.

Accordingly the lower court’s decision denying appellant’s motion is affirmed.

BOARDMAN, Acting C. J., and GRIMES, J., concur.