CHARLES SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Simmons appeals denial of post-conviction relief motion under Criminal Procedure Rule 1, claiming he was denied counsel at arraignment despite being indigent. The court reverses and remands, finding the trial court failed to hold a proper plenary hearing on potentially meritorious Sixth Amendment claims arising from Gideon v. Wainwright.
The court held that Simmons' allegations, considered with the record of his arraignment and pleas made without counsel and the denial of his motion to withdraw, posed a potentially valid claim for post-conviction relief. The trial court was obligated to call for the State's answer and conduct a fully reported plenary hearing to resolve the issues.
“We are constrained to hold that the denial below of appellant's motion under the Rule was on stated grounds which, if meritorious in the abstract, were based predominantly on matters dehors the record.”
The court found the trial court's denial was improper because it relied on matters outside the record rather than the allegations and record presented.
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Join FLexlaw to unlock all legal intelligenceIn January 1960, Simmons pleaded guilty to breaking and entering and grand larceny. Two weeks later, he moved to withdraw his plea, which was denied M…
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Appellant seeks post conviction relief under Criminal Procedure Rule No. 1, F.S.A. ■ch. 924 Appendix. In January 1960, appellant pleaded guilty to charges of breaking and entering and grand larceny. Two weeks thereafter, by counsel, he moved for leave to withdraw his plea of guilty. Hearing was had on the motion which was denied March 15, 1960. Appellant was adjudged guilty and sentenced to State Prison July 26, 1960. The judgment was affirmed on appeal. Simmons v. State, Fla.App. 1961, 132 So.2d 235.
On April 9, 1963, following the ■Gideon decision,1 the appellant moved to vacate the judgment and sentence alleging that at the time of his arraignment he was .a pauper; that he requested counsel; that his request was denied; and that he was sentenced to State Prison where he is now ■confined. On his present appeal, following denial of his motion below, the appellant Iras moved this court to fix bail pending final outcome of the proceedings under the Rule. The motion is denied. See Gammage v. State, Fla.App.1963, 154 So.2d 712.
We are constrained to hold that the ■denial below of appellant’s motion under the Rule was on stated grounds which, if meritorious in the abstract, were based predominantly on matters dehors the record. See Keur v. State, Fla.App.1963, 160 So.2d 546, 549. The conclusion is that the allegations of appellant’s motion considered along with the record of his arraignment and pleas absent counsel and in conjunction with the reported hearing and denial of the motion to withdraw the pleas of guilty, posed a potentially valid claim for relief under the Rule.
We think it was incumbent upon the trial court to call for answer by the State and then, consequent upon plenary hearing fully reported, resolve the issues made. See Caminita v. State, Fla.App.1964, 159 So.2d 921. The appealed order is reversed and the cause remanded for proceedings in accordance with directions as outlined in King v. State, Fla.App.1963, 157 So.2d 440.
Reversed and remanded.
SMITH, C. J., and SHANNON and WHITE, JJ., concur.
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State v. Matrascia, 377 So. 2d 997 (Fla. 3d DCA 1979)…d 538 (Fla.3d DCA 1978), and the various holdings of the courts of this state that a defendant is not “entitled” to bail pending his appeal from the denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. See Simmons v. State, 163 So. 2d 888 (Fla.2d DCA 1964); and Gammage v. State, 154 So. 2d 712 (Fla.3d DCA 1963). In Ex Parte Hyde, 140 Fla. 494, 192 So. 159 (1939), the Supreme Court made clear that bail after conviction of a crime is allowable only in cases where bail is provided by s…
Authorities Cited
- Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963)
- King v. State, 157 So. 2d 440 (Fla. 2d DCA 1963)
- Keur v. State, 160 So. 2d 546 (Fla. 2d DCA 1963)
- Caminita v. State, 159 So. 2d 921 (Fla. 2d DCA 1964)
- Simmons v. State, 132 So. 2d 235 (Fla. 2d DCA 1961)
- Bruce Hinson Gammage and Larry v. Gysin, 154 So. 2d 712 (Fla. 3d DCA 1963)