JACK G. WHITE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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White, a state prisoner, appealed the denial of his motion to vacate a 1948 armed robbery conviction and sentence. The court held that Criminal Procedure Rule No. 1 relief is only available to persons in custody under the specific sentence they seek to vacate, and White, who was serving a different sentence, was ineligible for relief.
A person is eligible for relief under Criminal Procedure Rule No. 1 only if they are in custody under the specific sentence they seek to vacate. Because White was serving a different sentence, he was not entitled to relief under the rule.
“Criminal Procedure Rule No. 1 is available only to a person in custody under the sentence which he is moving to vacate.”
Establishes the jurisdictional requirement for relief under the rule
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Join FLexlaw to unlock all legal intelligenceWhite was convicted of armed robbery in Orange County in 1948 and sentenced to ten years in the state penitentiary. He entered a guilty plea and had n…
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The defendant appeals a denial of his motion to vacate under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
This defendant was convicted of armed robbery and sentenced by the Criminal Court of Record of Orange County, Florida, on November 22, 1948, to ten years in the state penitentiary, the sentence to begin at the expiration of a previous sentence. He entered a plea of guilty and apparently did not have an attorney. At this time the defendant was already a prisoner of the State, having served two years of a twenty-one year sentence imposed in another county. The trial court found as a matter of fact that the prisoner was being held in custody by the Division of Corrections, not by virtue of any commitment of the Criminal Court of Record of Orange County, Florida, but by virtue of a commitment of the Criminal Court of Record of Duval County, Florida.
Criminal Procedure Rule No. 1 is available only to a person in custody under the sentence which he is moving to vacate. The defendant, who is serving a sentence different from the one which he is moving to vacate, is not entitled to relief.
Affirmed.
ALLEN, Acting C. J., and SHANNON and WHITE, JJ., concur.
ON PETITION FOR REHEARING
Appellant has filed a petition for rehearing, the basis of which is a letter which this court has received from the Director of the Florida Division of Corrections, stating that on July 26, 1963, appellant’s previous sentence imposed in Duval County, Florida, was vacated, and that he is now serving the sentence which was the subject of his motion to vacate under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
The original opinion in this case affirmed the trial court. When the motion to vacate the sentence of the Criminal Court of Record of Orange County was filed, the defendant was actually serving a sentence imposed in Duval County. The trial court rightfully denied the motion and we affirmed. However, it appears from the letter from the Director that the defendant is now serving the sentence of the Criminal Court of Record of Orange County which he was moving to vacate and that he would be entitled to a hearing by the trial court upon proper pleadings.
The petition for rehearing is denied. However, in view of the foregoing, it is appropriate that we amend our affirmance of our previous opinion so as to make the substantive part of that opinion be without prejudice to the defendant.
ALLEN, Acting C. J., and SHANNON and WHITE, JJ., concur.
PER CURIAM.
Appellant has filed a petition for rehearing, the basis of which is a letter which this court has received from the Director of the Florida Division of Corrections, stating that on July 26, 1963, appellant’s previous sentence imposed in Duval County, Florida, was vacated, and that he is now serving the sentence which was the subject of his motion to vacate under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
The original opinion in this case affirmed the trial court. When the motion to vacate the sentence of the Criminal Court of Record of Orange County was filed, the defendant was actually serving a sentence imposed in Duval County. The trial court rightfully denied the motion and we affirmed. However, it appears from the letter from the Director that the defendant is now serving the sentence of the Criminal Court of Record of Orange County which he was moving to vacate and that he would be entitled to a hearing by the trial court upon proper pleadings.
The petition for rehearing is denied. However, in view of the foregoing, it is appropriate that we amend our affirmance of our previous opinion so as to make the substantive part of that opinion be without prejudice to the defendant.
ALLEN, Acting C. J., and SHANNON and WHITE, JJ., concur.
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Jones v. State, 174 So. 2d 452 (Fla. 2d DCA 1965)…challenged commences at the expiration of another sentence under which the appellant is presently incarcerated. The State has filed a motion to quash the appeal. In Cummings v. State, Fla.App.1964, 166 So. 2d 775, and White v. State, Fla.App.1964, 165 So. 2d 799, this court held that a person moving to vacate a sentence which does not commence until the expiration of a previous sentence is not entitled to proceed under Criminal Procedure Rule No. 1, because he is not in custody under the sentences which he…
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Jerry v. State, 174 So. 2d 772 (Fla. 2d DCA 1965)…3, and will begin to serve the sentence for the terms imposed on August 17, 1961 when his present sentences terminate. [*773] The trial court denied relief on authority of numerous cases decided by this court, including White v. State, Fla.App.1964, 165 So. 2d 799. This court, in following said cases, per curiam affirmed the trial court by opinion filed on March 12, 1965. The defendant, in proper person, filed motion for rehearing on April 8, 1965, which must be stricken as not having been timely filed under…
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Ervin v. State, 189 So. 2d 374 (Fla. 4th DCA 1966)…even though he could not be released until the completion of the prior sentence. Jones v. State, Fla.App.1965, 174 So. 2d 452. It had been held to the contrary in Cummings v. State, Fla.App.1964, 166 So. 2d 775, and in White v. State, Fla.App.1964, 165 So. 2d 799. Both of these cases were overruled by Jones v. State, supra. The Supreme Court in Johnson v. State, Fla.1966, 184 So. 2d 161, held that a defendant serving eleven consecutive terms arising out of the same offense and subject to the same infirmity…
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