Falagon v. StateFalagon v. State
James W. Kynes, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
WHITE, Judge.
Morris Morgan Falagon appeals an оrder denying his petition for post conviction relief filed pursuant to
The trial court held that the doctrine announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, does not apply retroactively. It was held to the cоntrary in Geather v. State, Fla.App. 1964, 165 So.2d 229. Although the motion contains sworn allegations which we have deemed sufficient to obtain a hearing,1 the trial court held that the defendant did not affirmatively show that he was indigent or unable to obtain counsel at any time in the proceedings before the court. We have previously held that absent a finding that an indigent defendant was aware of a right to counsel without cost to him, his failure to indicate indigency does not сonstitute an affirmative waiver of the right. See Adkins v. State, Fla.App. 1964, 165 So.2d 231, Holmes v. State, Fla.App. 1964, 165 So.2d 433, opinion filed June 17, 1964.
The trial court‘s opinion is also liberally sprinkled with matters dehors the record, which matters we have рreviously held are improper for consideration on Rule 1 motion — unless they are first properly made a part of the record. Williams v. State, Fla.App. 1964, 163 So.2d 767. See also Thomas v. State, Fla.App. 1964, 160 So.2d 119. Thе remaining reason given for denying the relief sought states as follows:
“8. Defendant has consecutive sentences from the Circuit Court of Madison Cоunty for the crime of Escape, and even in the event that the Motion before this court should be granted, would not be entitled to be released from custody pursuant to Criminal Procedure Rule No. 1, inasmuch as he would have yet to serve the sentence from Madison County.”
The State сites several cases to the effect that post conviction relief under
The Florida Rule does not necessarily contemplate relеase from custody. The rule states in pertinent part:
“* * * If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the сonstitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” (emphasis added)
Under the Florida Rule it would be inconsistent to hold that relief which otherwise would be granted as to a current sentence should be denied simply because the petitioner is subject to consecutive sentences and could not be released frоm custody. He could be released from the particular sentence complained of and retained in custody under remaining sentences. If the contrary rationale were applied to the Florida rule, previous lack of due process would be presently compounded. If thе fact that the petitioner is serving multiple sentences under two different courts should operate as a bar against a Rule 1 motion, the petitioner would be denied relief from either judgment or sentence since he would have to vacate one judgment and sentence bеfore moving to vacate the other; and yet in the circumstances he could do neither.
Florida Rules of Civil Procedure no longer prоvide for writ of error coram nobis,2 and we have held that a collateral attack upon a conviction being served, which would traditiоnally be urged by said writ, should be urged under
Prior to the adoption of
A few days after adoption of
Thе order appealed is reversed and the cause remanded for further proceedings consistent herewith.
Reversed and remanded.
ANDREWS, J., concurs.
ALLEN, Acting C.J., concurs specially.
ALLEN, Acting Chief Judge (concurring specially).
I concur in the disposition of the cause indicated in Judge White‘s opinion. With respect to the propriety of affording a prisoner relief from one illegal sentence when, as in the instant case, he would be subject to immediate reincarceration under another consecutive sentence, I am of the view that the decisions of our Supreme Cоurt in Keene v. Cochran, Fla. 1962, 146 So.2d 364, and Velluchi v. Cochran, Fla. 1962, 138 So.2d 510, are determinative. These cases clearly indicate that the existence of a presumptively valid consecutive sentence does not preclude relief from an invalid sentence presently being served. Although concerned with writ of habeas corpus, both cases are, by nеcessary analogy, relevant to the subsequently proclaimed
With respect to the propriety of relief from one illegal sentence when, as is not the case here, the prisoner is presently incarcerated under a presumptively valid concurrent sentence, I would express no opinion except to note that the opinion of a bare majority of our Supreme Court in Dora v. Cochran, 138 So.2d 508, would seem to permit invalidation of a judgment in proceedings purporting to be concerned merely with the legality of detention, notwithstanding confirmation of the legality of detention.