ALBERT POLO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a defendant's incarceration in Florida is a proper basis for seeking post-conviction relief, even if the sentence being challenged is not the one causing current incarceration.
Appellant filed a motion to vacate judgment and sentence. The trial court summarily denied the motion, stating the appellant was not incarcerated from…
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This is an appeal from a summary denial of appellant’s motion to vacate judgment and sentence pursuant to Rule 1.850, Florida Rules of Criminal Procedure, 33 F.S.A. The ground for the summary denial as set out in the order denying the motion is: “That the movant is not presently incarcerated from any sentence having been imposed upon him in this cause”.
The order of the trial judge was in accord with prior holdings of the appellate courts of this state. See, e. g., Fretwell v. Wainwright, Fla.1966, 185 So.2d 701.
However, since appellant is presently imprisoned in Florida, it is not a proper ground under the law of this state as set forth in Lawson v. State, Fla.App.1969, 225 So.2d 581; Lawson v. State, Fla.1970, 231 So.2d 205; Reynolds v. State, Fla.App.1969, 224 So.2d 769; State v. Reynolds, Supreme Court, 238 So.2d 598, opinion filed March 11, 1970.
Accordingly, the order denying appellant’s motion is reversed with directions to proceed upon the merits of the motion.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Laytner v. State, 239 So. 2d 857 (Fla. 3d DCA 1970)…een 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 the evidence which the appellant sought to bring forth on her petition for relief pursuant to Cr.PR was clearly available at…
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Pair v. State, 275 So. 2d 581 (Fla. 2d DCA 1973)…l of the prior cases. The trial judge denied the motions since appellant was not in custody under either of the two sentences. We believe it was error and reverse on the authority of Rose v. State, 235 So. 2d 353 (3d D.C.A.Fla.1970); Polo v. State, 238 So. 2d 160 (3d D.C.A.Fla.1970); Reynolds v. State, 224 So. 2d 769 (2d D.C.A.Fla.1969); aff’d 238 So. 2d 598 (Fla.1970); Wilcox v. State, 267 So. 2d 15 (1st D.C.A.Fla.1972). Such patently illegal convictions have justifiably been set aside despite the technica…
Authorities Cited
- State v. Madison Lee Reynolds, 238 So. 2d 598 (Fla. 1970)
- Reuel Lawson v. State, 231 So. 2d 205 (Fla. 1970)
- Madison Lee Reynolds v. State, 224 So. 2d 769 (Fla. 2d DCA 1969)
- Fretwell v. Louie L. Wainwright, 185 So. 2d 701 (Fla. 1966)
- Reuel Lawson v. State, 225 So. 2d 581 (Fla. 3d DCA 1969)