JAMES PAIR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed denial of Rule 3.850 motions to vacate sentences where defendant alleged deprivation of counsel under Gideon, holding that patently illegal convictions may be set aside even when defendant is not in custody, and remanded for evidentiary hearing.
A trial court must conduct an evidentiary hearing on a Rule 3.850 motion alleging unconstitutional deprivation of counsel, even when the defendant is not in custody, because patently illegal convictions may be set aside despite technical custody requirements.
[1] A trial court must conduct an evidentiary hearing on a Rule 3.850 motion alleging unconstitutional deprivation of counsel despite the defendant's lack of custody status,…
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Join FLexlaw to unlock all legal intelligenceJames Pair filed two Rule 3.850 motions to vacate sentences in separate cases, alleging he was denied counsel in violation of Gideon v. Wainwright. Th…
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The appellant James Pair filed two CrPR 3.850, 33 F.S.A. motions to vacate and set aside his sentence in separate cases. Since this question is the same in both cases, we have combined them for the purposes of this opinion. The trial judge denied both motions without evidentiary hearings. Both motions alleged that appellant was without counsel in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in that he was not represented by counsel in either trial 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 technical requirements of the language of the rule requiring custody.
We therefore remand both cases to the trial court for an evidentiary hearing to determine whether the appellant’s allegations that he was unconstitutionally deprived of counsel are well founded; and, if so, the appellant’s motions should be granted.
Reversed and remanded with directions.
MAÑ'N, C. J., and McNULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pair v. State, 288 So. 2d 581 (Fla. 3d DCA 1974)…confession of error in which it suggests that the requirment has been changed by more recent cases. Based upon the decisions in the cases of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and Pair v. State, Fla.App.1973, 275 So. 2d 581, we find that it was error to deny appellant an evidentiary hearing. This cause is remanded' to the trial court for an evidentiary hearing to determine whether appellant’s allegation that he was unconstitutionally deprived of counsel is well-founded…
Authorities Cited
- Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963)
- State v. Madison Lee Reynolds, 238 So. 2d 598 (Fla. 1970)
- Madison Lee Reynolds v. State, 224 So. 2d 769 (Fla. 2d DCA 1969)
- Wilcox v. State, 267 So. 2d 15 (Fla. 1st DCA 1972)
- Rose v. State, 235 So. 2d 353 (Fla. 3d DCA 1970)
- Polo v. State, 238 So. 2d 160 (Fla. 3d DCA 1970)