Paul v. State

165 So. 2d 779 | Fla. Dist. Ct. App. | 1964

BARKDULL, Chief Judge.

This is an appeal from a denial of a petition to vacate judgment and sentence, filed pursuant to Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix. The allegations of the petition are that the appellant pleaded guilty to four informations relating to forgery, upon the inducement of the attorney for the State and the public defender and upon their promises that any sentences imposed because of the pleas of guilty to the forgery matters would run concurrently to a sentence imposed on a robbery conviction, in a cause then pending under Case No. 62—5386. The petition was denied without a formal hearing and it is apparent, from this record, that there was some confusion as to the several sentences imposed upon the appellant.

Therefore, from the record before us, it appears that the trial judge erred in summarily denying the relief sought by the appellant, and this cause is remanded to the trial court for the purpose of ascertaining whether or not the appellant is in fact serving a sentence under the aforementioned robbery conviction. If he is, the relief sought by the instant petition should be denied under the authority of McCormick v. State, Fla.App,1964, 164 So.2d 557, (1964). If, in fact, the appellant is not serving a sentence under the robbery conviction or the sentences imposed under the forgery matters are in excess of that of the robbery conviction, then the appellant should be granted a full and complete formal hearing.

It does not appear that it will be necessary for the appellant to be present at the time of the inquiry by the trial court as to the robbery sentence, but this is a matter which would be in the discretion of the trial judge.

Therefore, for the reasons above stated, the order here under review is hereby reversed with directions.

Reversed and remanded, with directions.