JOHN DAVID BRYANT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Bryant appeals the denial of a petition for relief under Criminal Procedure Rule 1, seeking to collaterally attack a sentence for breaking and entering and grand larceny. The court affirmed the denial, holding that Rule 1 relief is unavailable when the petitioner is no longer in custody under the sentence being attacked.
Criminal Procedure Rule 1 is not available to collaterally attack a sentence unless the movant is in custody under the sentence attacked. Because Bryant's underlying seventeen-year sentence had been vacated and set aside, he was not in custody under that sentence, making Rule 1 relief unavailable.
“A prisoner in custody under sentence * * * may move * * * to vacate, set aside or correct the sentence.”
The court quotes the text of Criminal Procedure Rule 1 itself, establishing the jurisdictional requirement that the petitioner must be in custody under the sentence attacked.
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Join FLexlaw to unlock all legal intelligenceBryant was sentenced to five years in state prison as a multiple offender while serving a seventeen-year sentence. Bryant subsequently obtained relief…
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This is an appeal from an order of the trial court, denying a petition for relief under Criminal Procedure Rule Number One, F.S.A. ch. 924 Appendix.
Petitioner seeks relief from an alleged conviction and sentence for breaking and entering, and grand larceny.
The basis of the petition was that:
“ * * * The petitioner were sentence (sic), for a term of five (5) years in Fla. State Prison at Railford as a multiple offender, due to the fact that he was serving a seventeen (17) years' sentence at the time. * * *
“Since Criminal Rule No. 1, subsequently the (17) years sentence was vacated and set aside and has been given time served. * * *"
A thorough examination of this record does not show that the appellant (petitioner) was sentenced as a mulitple offender. The information does not contain an allegation against a multiple offender, nor does the judgment and sentence.
Sampson v. State, Fla.App.1963, 158 So.2d 771, stated the law, succinctly, by holding:
“ * * * if upon examination, the motion [Criminal Procedure Rule One] is sufficient, but the ‘files and records in the case’ conclusively refute the allegations or otherwise conclusively preclude relief, summary denial is proper.”
Notwithstanding the above, it is well settled in this State that Criminal Procedure Rule Number One is not available to collaterally attack the sentence of a trial court unless the movant is in custody under the sentence attacked. The Rule itself states:
“A prisoner in custody under sentence * * * may move * * * to vacate, set aside or correct the sentence.” (Emphasis supplied)
See Nabozny v. State, Fla.App.1964, 163 So.2d 765; Frappied v. State, Fla.App.1964, 163 So.2d 502.
The identical point involved in the case at bar was presented in McCormick v. State, Fla.App.1964, 164 So.2d 557, and this court held:
“ * * * Criminal Rule 1, * * * is not available to collaterally attack the sentence of the court unless the movant is in custody under the sentence attacked.” (Emphasis supplied)
The petitioner affirmatively alleges that the sentence for seventeen years under attack herein has been vacated and set aside. Under the authority of McCormick v. State, supra, the trial court acted properly in denying the petition.
Affirmed.
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Cited By
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Grayer v. State, 214 So. 2d 765 (Fla. 3d DCA 1968)…have carefully considered the briefs and record on appeal and have concluded that appellant’s contentions are without merit. Fields v. State, Fla.App.1966, 202 So. 2d 226; Smith v. State, Fla.App. 1966, 192 So. 2d 41; Bryant v. State, Fla.App. 1965, 174 So. 2d 41. Affirmed.…
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Manning v. State, 199 So. 2d 310 (Fla. 2d DCA 1967)…lenary hearing. The record reflects that appellant was represented by counsel at all critical stages of the proceeding, including arraignment. Hence the trial court was correct in holding that the appellant is entitled to no relief. Bryant v. State, 174 So. 2d 41 (D.C.A.Fla.1965); Sampson v. State, 158 So. 2d 771 (D.C.A.Fla.1963). Affirmed. LILES, Acting C. J., and PIERCE and HOBSON, JJ., concur.…
Authorities Cited
- Arthur v. Sampson, 158 So. 2d 771 (Fla. 2d DCA 1963)
- McCORMICK v. State, 164 So. 2d 557 (Fla. 3d DCA 1964)
- Frappied v. State, 163 So. 2d 502 (Fla. 2d DCA 1964)
- Lansman v. Lansman, 163 So. 2d 765 (Fla. 3d DCA 1964)
- Alphonse Nabozny v. State, 163 So. 2d 765 (Fla. 2d DCA 1964)