JAMES PAIR, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed denial of evidentiary hearing on Rule 3.850 petition challenging escape conviction, holding that appellant was entitled to hearing on ineffective assistance of counsel claim despite not being currently incarcerated under the escape sentence.
A defendant is entitled to an evidentiary hearing on a Rule 3.850 petition challenging an escape conviction even when not presently incarcerated under that particular sentence.
[1] A defendant is entitled to an evidentiary hearing on a Rule 3.850 petition challenging a conviction even when not currently incarcerated under the sentence imposed for th…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of breaking and entering in 1955 and sentenced to five years; he escaped in October 1955 and was convicted and sentenced to te…
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PER CURIAM.
The appellant was convicted of the crime of breaking and entering and sentenced to five years imprisonment on May 7, 1955. On October 23rd of that year he escaped from confinement. Defendant was convicted and sentenced to ten years in the state prison for the crime of escape. Subsequently, he was sentenced for other crimes and is now confined in the state prison. This appeal is from a denial of a petition pursuant to Rule 3.850, CrPR, 33 F.S.A., addressed to the escape conviction.
The trial court denied evidentiary hearing upon the ground that appellant was not presently incarcerated under the escape sentence. There are many cases in the Reporter which support the position of the trial judge; however, the State has filed a 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, and if so appellant’s motion shall be granted.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- United States v. Tucker, 404 U.S. 443 (U.S. 1972)
- Singletary v. State, 275 So. 2d 581 (Fla. 3d DCA 1973)
- Pair v. State, 275 So. 2d 581 (Fla. 2d DCA 1973)