ROBERT LEE DAVIS, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

CARROLL, Judge.

The appellant Robert Lee Davis was informed against in Dade County. The information was in two counts. The charge-contained in the first count was for possession of a pistol after previously having-been convicted of a felony, in violation of' § 790.23 Fla.Stat., F.S.A.1 The second-count charged failure to register with the-sheriff as a convicted felon, within 48 hours-after arrival in Dade County, in violation-of § 775.13 Fla.Stat, F.S.A. The prior *441'felony conviction depended upon in each count was one for robbery rendered in Hillsborough County in 1946 on his plea of : guilty.

The defendant waived a jury and was tried before the criminal court of record in Dade County. The state produced record evidence of the 1946 felony conviction. It was disclosed from the court minutes 'that when the defendant pleaded guilty in the 1946 case he was without counsel. Evidence of his possession of a pistol as alleged also was presented in the Dade •County trial.

At the close of the state’s case the defendant, through the public defender who represented him at the trial, moved for a •directed verdict. The trial judge granted •defendant’s motion as to count two, charging failure to register as a felon. On the ■motion for directed verdict as to count one, it was contended on behalf of the defendant 'that the state had failed to prove validity ■of the 1946 robbery conviction.

The motion for directed verdict as to ■count one was denied. Thereupon defendant’s attorney announced intention to institute proceedings in Hillsborough County 'in the court which had rendered the 1946 judgment to attack its validity. The trial judge then stated adjudication of guilt and sentence would be withheld, dependent on the outcome of such proceedings in Hills-borough County, and directed the parties to make due report thereon.

Later it was reported to the trial judge that the court in Hillsborough County had denied defendant’s motion filed under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix because the sentence imposed on the earlier judgment had been served, and that a further challenge of the judgment was being filed in the Hillsborough court by motion for writ of error coram nobis. Ultimately it was reported to the trial judge in Dade County, without objection or contradiction by the state, that defendant’s motion for writ of error coram nobis was dismissed by the Hillsborough court summarily, without going to the merits.2

When it appeared in the trial of this case that the prior conviction had resulted from proceedings in which the defendant was not represented by counsel then it became material to inquire into and determine the circumstances thereof bearing on the validity of the judgment of conviction, under the rule of the Gideon case.3 In Sardinia v. State, Fla. 1964, 168 So.2d 674, 677, the Supreme Court of Florida said:

“A plea of guilty, in and of itself, is not a waiver of the right to assistance of counsel. Indeed, the lack of advice of counsel could often result in a plea of guilty by one untrained in the intricacies of the criminal law. It is for this very reason that assistance of counsel in felony cases has been elevated to due process status. Gideon v. Wainwright, supra. It is only when the accused knowingly and intelligently waives the right that he can be bound by any action taken without such assistance. Carnley v. Cochran, 369 U.S. 506, 508, 82 S.Ct. 884, 8 L.Ed.2d 70; Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367.”

In Mason v. State, Fla.1965, 176 So.2d 76, 79, the Supreme Court approved a prior *442holding of the second district court of appeal that “failure of an accused to request counsel is not of itself a waiver,” and said:

“ * * * q-jjg court has a duty to inform the accused of his right to have counsel and the availability of a state-supplied lawyer, if he is unable to provide his own. * * * ”

Further in that case (at p. 80) the Supreme Court outlined the procedure and cautioned that the steps taken should be noted in the minutes for further reference in event of subsequent challenge of the proceedings.

If the defendant’s motions challenging the validity of the judgment in the Hillsborough court, during a suspension of proceedings in the trial of the present case, had been determined on the merits, the decision of that court would have been conclusive on the material question of validity of the prior conviction. But when it was shown that the defendant’s motions challenging the 1946 conviction were not tried on the merits, the trial court in the Dade County case properly permitted the defendant to produce evidence bearing on the validity question. Thereupon the defendant was sworn, and upon interrogation by his attorney testified as follows:

“Q For the record would you please state your name.

“A Robert Lee Davis.

“Q You are the same person as the Robert Davis that was convicted of the offense of robbery in Tampa, Florida?

“A Yes.

“Q On June 10th, 1946?

“A Yes.

“Q For the record, since the record is not a photograph, you are colored; is that right?

“A Yes.

“Q When were you born ?

“A June 1st, 1923.

“Q Do you recall the time that you were convicted of that in 1946?

“A Can I tell how it was?

“Q I want you not to tell us about the case; tell us about the time you were in court.

“MRS. MORPHONIOS: Objection, your Honor. It has no material bearing on the case before the Court.

“THE COURT: Overruled. Go ahead.

“Q Did you have a lawyer then ?

“A No, sir.

“Q Could you have afforded a lawyer at that time?

“A No, sir.

“Q Did the Court offer you a lawyer at that time ?

“A No, sir.”

In addition to that testimony there was submitted on behalf of the defendant a certificate of the clerk of the Hillsborough court confirming the fact that the record of the proceedings on the prior conviction showed the defendant was not represented by counsel. The state presented no evidence to the contrary, taking the position that the record of the prior conviction was sufficient, and that evidence such as presented by the defendant was immaterial. The trial judge then adjudged the defendant guilty on count one and imposed sentence, from which judgment and sentence this appeal was taken.

The showing, on the record of the prior conviction that defendant was without counsel and testimony by the defendant as quoted above, from which the court was not entitled to infer that he was advised of his right to counsel and duly waived counsel, was not overcome by the state by any showing from the record of the prior case, or otherwise. We hold, therefore, that the state failed to establish the ex*443istence of a valid prior conviction as alleged in the information, which was a material ■element of the crime charged in count one.

For the reasons stated the judgment appealed from is reversed, and the cause is remanded with directions to discharge the ■defendant.

Reversed and remanded.

PEARSON, Judge

(concurring specially).

While I concur in the foregoing opinion, I think it should he pointed out that the State had presented a prima facie case when it proved the prior conviction by competent evidence. See Shargaa v. State, Fla.1958, 102 So.2d 809. At this point, there was a rebuttable presumption that the prior judgment was regular and that the record spoke ■the truth. Ratcliff v. State, Fla.App.1964, 168 So.2d 181. The defendant had the bur■den of rebutting this presumption. King v. State, Fla.App.1963, 157 So.2d 440, 444. The defendant, having undertaken this task •of going forward with the evidence, made .a prima facie showing that he was not represented by counsel, he was financially unable to employ counsel, and he did not competently and intelligently waive his right to counsel. The defendant carried his burden, and the State was required to show that the petitioner was in fact counseled by an attorney or that he did in fact intelligently waive such right with full realization of the consequences before entering his plea of guilty. Ratcliff v. State, supra.

I am convinced that an attack upon the prior conviction may be made in this proceeding. This conclusion is based upon the requirements of due process of law set forth by the Supreme Court in Oyler v. Boles, 368 U.S. 448, 453, 82 S.Ct. 501, 7 L.Ed.2d 446, 451. The issue in the Oyler case was whether or not a defendant should have advance notice of the State’s intention to charge him under the habitual criminal statute. The defendants contended that they would have raised certain defenses if they had been given notice of the recidivist charges. The Court did not consider the availability of the defenses because the defenses had not been raised in the lower court; however, the opinion for the majority of the Court states: “It is, of course, true that identity is not the only issue presented in a recidivist proceeding, for, as pointed out by Mr. Justice Hughes * * * when this Court first reviewed West Virginia’s habitual criminal law, this statute contemplates valid convictions which have not been subsequently nullified. * * * Indeed, we may assume that any infirmities in the prior convictions open to collateral attack could have been reached in the recidivist proceedings, either because the state law so permits or due process so requires.”

SWANN, Judge

(dissenting).

I must respectfully dissent from the views expressed in the majority opinion for several reasons.

To permit the defendant to collaterally attack the validity of a 1946 Hillsborough County criminal conviction in a court of equal jurisdiction, not specifically authorized to reopen such cases, serves merely to frustrate and destroy the sanctity of final judgments.

Although the production and use of the original judgment signed by the judge has been held to be sufficient in Florida, to prove a previous conviction, in a second offender prosecution in Florida,1 the trial court here, consistent with “due process,” afforded the defendant an opportunity to attack the validity of the previous felony conviction in the original court [in which it was entered] by withholding adjudication of guilt until the outcome of that proceeding.

The Hillsborough court denied relief under Criminal Procedure Rule No. One, *444apparently because the defendant was not then in custody under that judgment and sentence. Frappied v. State, Fla.App.1964, 163 So.2d 502; Nabozny v. State, Fla.App. 1964, 163 So.2d 765. Presumably, had an appeal been taken from that order denying relief, the doctrine enunciated in Red-dick v. State 2 might have been invoked for a showing that the unusual, exceptional and particular circumstances of this defendant could result in a miscarriage of justice.

There are, however, more significant reasons for my dissent.

As set forth in the majority opinion, a writ of error coram nobis was also sought in the court of original jurisdiction and it was denied, [see cases and reasons in footnote No. 2 of majority opinion] it is said, because the Second District Court of Appeal had ruled that the writ had been abolished by the Florida Rules of Civil Procedure.

In McCormick v. State, Fla.App. 1964, 164 So.2d 557, this court indicated that writs of error coram nobis in criminal cases were neither superseded nor abolished by Criminal Procedure Rule No. One. The defendant, therefore, might have appealed to the District Court of Appeal, Second District, from the Hillsborough court’s dismissal of his motion for a writ of error coram nobis, and, if denied relief under the decisions in Falagon and Grant, supra, petitioned the Supreme Court of Florida for a writ of certiorari on the ground of “conflict” between those decisions and McCormick, supra.

United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), involved a similar situation. In that case, the petitioner, convicted and sentenced by a New York State court, was given a longer sentence as a second offender, based upon a 1939 conviction on a federal charge. The court allowed an attack upon the earlier federal conviction under a writ of error coram nobis on the basis that the petitioner was without counsel in the earlier proceeding. The court rejected the contention that a federal statute, 28 U.S.C. § 2255, similar to Florida’s Rule One, barred the availability of relief under coram nobis.

It appears that the defendant has not pursued the various remedies and procedures under which he might have challenged the validity of the prior conviction. To attack that conviction, he could have-availed himself of Criminal Procedure Rule No. One, appeal from denial; Writ of Error Coram Nobis to the original trial' court, appeal from denial or Habeas Corpus. [See United States ex rel. Noll v. Fay, D.C.1963, 219 F.Supp. 262.] Having chosen not to pursue any of these remedies, the-defendant now seeks to “get another bite at the apple” by challenging its validity in. the present case. To permit the procedure sanctioned by the majority extends the-doctrine of Gideon v. Wainwright3 farther than that permitted by Criminal Procedure Rule No. One, in that it will permit convicted felons to collaterally attack the validity of prior convictions after they have-served their time whenever they are faced with second offender prosecutions in other jurisdictions.

I think that by his previous actions, the-defendant has knowingly and intelligently waived his right to collaterally attack this-prior judgment.

I dissent.