THEODORE N. TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Turner appealed the denial of a motion for post-conviction relief under Florida Criminal Procedure Rule No. 1, claiming deprivation of the right to counsel. The court affirmed the lower court's denial but without prejudice, allowing Turner to file a sufficient motion establishing the facts surrounding his conviction and sentence.
The court affirmed the lower court's denial of the motion because the motion failed to allege a prima facie case of denial of the right to counsel by not alleging that the movant was insolvent at arraignment and plea. However, the affirmance was without prejudice to allow Turner to file a sufficient motion and request counsel for proceedings thereon.
“The motion, denial of which is appealed, did not allege that the movant was insolvent at the time of arraignment and plea and, accordingly, did not allege a prima facie case of denial of the right to counsel.”
Establishes the critical deficiency in Turner's motion—failure to allege insolvency as a predicate for the right to counsel claim
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Join FLexlaw to unlock all legal intelligenceTurner filed a motion for post-conviction relief challenging his conviction and sentence. The motion did not allege that Turner was insolvent at the t…
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This cause arises upon appeal from denial of a motion filed pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. By Per Curiam decision filed on January 22, 1964, this court affirmed the lower court’s action. It appears, however, that our Per Curiam decision without opinion has caused some confusion as to the appellant’s right to further review of his conviction and sentence. In view of this, said Per Curiam decision is hereby withdrawn and the following opinion is substituted in lieu thereof.
The motion, denial of which is appealed, did not allege that the movant was insolvent at the time of arraignment and plea and, accordingly, did not allege a prima facie case of denial of the right to counsel. In view of this insufficiency the order denying the motion must be affirmed. Savage v. State, Fla.App.1963, 156 So.2d 566.
The lower court did not base denial of the motion solely on the insufficiency of *12the motion, but made certain findings of fact which are neither supported nor contravened by the record in this court. In view of the deficiency of the record in this court, the fact that appellant was not represented by counsel in proceedings below or at the time the record was prepared, and the clear insufficiency of the motion as a predicate for relief, we deem it appropriate to affirm the order without prejudice to appellant’s right to file a sufficient motion in the lower court, to request counsel for any proceedings on that motion and, through proceedings on that motion, establish the facts surrounding his conviction and sentence. King v. State, Fla.App.1963, 157 So. 2d 440; Mullins v. State, Fla.App.1963, 157 So.2d 701; Keur v. State, Fla.App.1963, 160 So.2d 546; Caminita v. State, Fla.App. 1964, 159 So.2d 921.
Affirmed.
ALLEN, Acting C. J., and SHANNON and WHITE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Turner v. Wainwright, 161 So. 2d 12 (Fla. 2d DCA 1964)…PER CURIAM. Petitioner has filed a petition for habeas corpus in this court, alleging, inter alia, exhaustion of remedies under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. Examination of the opinion in Turner v. State, Fla.App.1964, 161 So. 2d 11, reveals that the trial court’s order denying petitioner-appellant’s motion under Rule No. 1 was affirmed without prejudice to further proceedings by proper motion under Criminal Procedure Rule No. 1. In view of the ostensive adequacy of remedy und…
Authorities Cited
- King v. State, 157 So. 2d 440 (Fla. 2d DCA 1963)
- Savage v. State, 156 So. 2d 566 (Fla. 1st DCA 1963)
- Keur v. State, 160 So. 2d 546 (Fla. 2d DCA 1963)
- Caminita v. State, 159 So. 2d 921 (Fla. 2d DCA 1964)
- Hilton Mullins v. State, 157 So. 2d 701 (Fla. 1st DCA 1963)
- Turner v. Wainwright, 161 So. 2d 12 (Fla. 2d DCA 1964)