CECIL ROSE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Cecil Rose appealed the denial of his Rule 1.850 motion for post-conviction relief based on alleged denial of counsel at his 1948 conviction. Although the court found the trial judge's reasoning about custody status insufficient under recent precedent, it affirmed the denial because Rose failed to allege he was insolvent and unable to procure counsel, an essential element of his claim.
The court held that a prisoner may be 'in custody' for purposes of post-conviction relief even after satisfying a sentence if the motion shows a relationship between current confinement and the judgment at issue. However, Rose's motion was properly denied because it failed to allege the essential element that he was insolvent and unable to procure counsel at the time of his 1948 conviction.
[1] A prisoner is considered "in custody" for post-conviction relief purposes when the motion demonstrates a relationship between current confinement and the challenged judgm…
[2] Prisoners seeking post-conviction relief are not held to exactitude in pleading their claims.
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Join FLexlaw to unlock all legal intelligence“a prisoner is "in custody" for the purpose of applying for post-conviction relief from a judgment, the sentence for which has been satisfied, if the motion shows some relationship between the current confinement and the judgment to which the motion for relief is addressed”
Establishes the legal standard for custody status in post-conviction relief cases, overruling the trial judge's strict interpretation
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Join FLexlaw to unlock all legal intelligenceRose was convicted in 1948 and sentenced, with his sentence having been completely satisfied by the time of this appeal. He filed a motion for post-co…
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This is an appeal from an order denying without evidentiary hearing appellant’s motion for relief pursuant to Rule 1.850, Florida Rules of Criminal Procedure, 33
*354F.S.A. The trial judge set out the ground for the denial as follows:
“That Movant is not presently incarcerated by virtue of the Sentence heretofore imposed upon him in this cause on January 6, 1948, said sentence having been heretofore completely satisfied.”
The conclusion of the trial judge is supported by decisions in this jurisdiction prior to the date of his order. Nevertheless we think that the ground is not sufficient under the later decisions. See Lawson v. State, Fla.1970, 231 So.2d 205; State v. Reynolds, Supreme Court, case no. 38,848, filed March 11, 1970. And cf. Cappetta v. Wainwright, 406 F.2d 1238 (5th Cir.1969). The foregoing authorities lead us to conclude that a prisoner is “in custody” for the purpose of applying for post-conviction relief from a judgment, the sentence for which has been satisfied, if the motion shows some relationship between the current confinement and the judgment to which the motion for relief is addressed such as would result in the prisoner’s receiving credit in some degree on the current confinement. The relationship claimed in this motion is by no means clear. However, prisoners seeking relief under Rule 1.850 are not held to exactitude in pleading. Hall v. State, Fla.App.1964, 160 So.2d 527. In the instant case the state has conceded in argument that from the allegations of the motion there may be a relationship between the current confinement and the judgment to which the motion is addressed. We therefore hold that the reason assigned by the trial judge for the summary denial of the motion is insufficient.
The ground for relief relied upon by appellant in his motion is an allegation that he was not afforded counsel at the time of his conviction in 1948. The state points out that the motion is fatally defective in that it does not allege that appellant was insolvent and unable to procure counsel in 1948. Such an allegation has been held essential even under the relaxed requirements for a motion for relief pursuant to Rule 1.850. Savage v. State, Fla.App.1963, 156 So.2d 566; Leeds v. State, Fla.App.1966, 187 So.2d 77. Therefore the order denying relief under the rule cannot be held to have been erroneous.
Inasmuch as our affirmance of the denial of appellant’s motion is based on the above-mentioned deficiency in the allegations of the motion, the affirmance will not prejudice a subsequent motion upon the same ground if appellant is able truthfully to allege that he was insolvent and unable to procure counsel in 1948. See Leeds v. State, above.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Laytner v. State, 239 So. 2d 857 (Fla. 3d DCA 1970)…been released. We do not concur in the reasoning of the trial judge, particularly in light of the fact that the petition had been filed while the appellant was in custody. Reynolds v. State, Fla.App.1969, 224 So. 2d 769; Rose v. State, Fla.App.1970, 235 So. 2d 353; State v. Reynolds, Fla.1970, 238 So. 2d 598, 600 (opinion filed March 11, 1970); Polo v. State, Fla.App.1970, 238 So. 2d 160 (opinion filed July 28, 1970). However, we do concur in his denial because, upon an examination of the record, we find that…
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McCLENDON v. Louie L. Wainwright, 280 So. 2d 703 (Fla. 4th DCA 1973)…d for relief that defendant was without counsel at the time he pled guilty. This allegation standing alone is insufficient to show a right to relief under Rule 3.850 CrPR. On this basis only we affirm the appealed order. Rose v. State, Fla.App.1970, 235 So. 2d 353.” Petitioner then filed in the trial court on May 2, 1972, a further motion to vacate in which he alleged not only the fact that he was without counsel when he pled guilty, but also that at the time of entering the plea he was indigent, that he des…1 / 2
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Lawrence v. State, 404 So. 2d 1129 (Fla. 3d DCA 1981)…different sentence is being prolonged because of his 1953 conviction, the sentence on which was long ago served, is sufficient to satisfy the “in custody” requirement of Rule 3.850. Bryan v. State, 345 So. 2d 1095 (Fla. 2d DCA 1977); Rose v. State, 235 So. 2d 353 (Fla. 3d DCA 1970). See also Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Savage v. State, 156 So. 2d 566 (Fla. 1st DCA 1963)
- Cappetta v. Louie L. Wainwright, 406 F.2d 1238 (5th Cir. 1969)
- Reuel Lawson v. State, 231 So. 2d 205 (Fla. 1970)
- Hall v. State, 160 So. 2d 527 (Fla. 2d DCA 1964)
- Garland Leeds v. State, 187 So. 2d 77 (Fla. 2d DCA 1966)