Daniel Stewart was charged with breaking a fence. He entered a plea of not guilty, was tried, found guilty by a jury, adjudged guilty and sentenced to a term in the state prison. He filed a motion, pursuant to Criminal Procedure Rule # 1, F.S.A. ch. 924 Appendix, to vacate and set aside the judgment and sentence, alleging that he was tried, convicted and sentenced without benefit of counsel at a time when he was indigent and unable to afford counsel. From an order denying relief without a hearing, he appeals.
This record shows that the court neither advised this defendant of his constitutional right to court-appointed counsel if he was insolvent, nor offered to appoint counsel for him. On a record such as this, the question as to whether or not there was a competent and intelligent waiver of the defendant’s right to counsel does not exist. An examination of the motion and the files and records of the case does not