Lawson v. StateLawson v. State
Thе appellant, having been charged by information with the crime of armed robbеry, when arraigned in the Dade County Criminal Court of Record pleaded guilty to the offense of robbery, and on September 3, 1953, was so adjudged and sentenced therefor to confinement in the state penitentiary for a period of ten years. This appeal is from a ruling of the trial court denying his fourth motion for relief therefrom, filed on October 9, 1967, under Rule 1.850 CrPR, 33 F.S.A. The order of the trial court, entered January 30, 1968, was on thе merits of the motion and did not deal with the question of the status of the defendant’s confinement as having a bearing on his standing to apply under the rule for such relief.
The dеfendant appealed, and thereafter a motion was filed in this court by the appellant, through the public defender as his counsel, requesting that jurisdiction be relinquished to the trial court to consider and rule on the question of whether the defendant-appellant had standing to file the motion for relief, upon considerаtion of his status as to confinement. We granted the motion, and thereafter the trial court entered an order holding that the motion for relief should be denied on thаt ground, stating “That movant is not presently incarcerated by virtue of the sentence heretofore imposed upon him in this cause on September 3, 1953.” In that order the trial court also repeated the holding of its prior order that the grounds for rеlief asserted in the motion were refuted by the record.
The cause then was rеsumed here, and the point relating to the right of the movant to seek relief was briеfed and argued. Whereupon, contrary to the ruling of the trial court on that point, we conclude and hold that in the circumstances presented as to the сonfinement status of the defendant-appellant, he had standing to move for
Under the recent decision of the United States Supreme Court in Peyton v. Rowe, (1968)
We also note that under the holding of the Florida case of Fretwell v. Wainwright, Fla.1966,
However, on the authority and reasoning of the federal court as expressed in the more recеnt case of Peyton v. Rowe, supra, we hold that the fact that the appеllant was serving an intermediate sentence did not deprive him of status to seek relief under Rule 1.850 from the earlier conviction and sentence, where a pоrtion of the latter sentence remained to be served on expiration of the intervening sentence or sentences currently being served.
On consideratiоn of the matters raised in the appellant’s fourth motion for relief in the trial court, not previously presented and rejected by the trial court in the three earlier motions, we find no meritorious ground asserted which is not dissipated by the record, аs m fact was held by the trial court. Whereupon, the order of the trial court denying the motion on its merits is affirmed.
It is so ordered.