Opinion
No. 4806.
September 2, 1964.
Appeal from the Circuit Court for Seminole County, Volie A. Williams, Jr., J.
W.D. Frederick, Jr., Public Defender, and Joseph X. DuMond, Jr., Asst. Public Defender, Orlando, for appellant.
James W. Kynes, Atty. Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
This is an appeal from an order denying a motion for post-conviction relief under the provisions of Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
The record shows that the defendant on a plea of guilty to entering without breaking with intent to commit a felony was sentenced to serve from six months to four years under the custody of the Department of Corrections. The petition recites facts which, if true, would entitle the defendant to a new trial as set forth in King v. State, Fla.App. 1964, 157 So.2d 440. The record does not show that as of the date of the petition the defendant was serving a sentence in Florida.
The motion to vacate the sentence was executed in Rhode Island, and the Court set the matter for hearing on a day certain with notice to the defendant and his attorneys of Providence, Rhode Island, to appear at said hearing. There was no appearance, and the court entered its order denying relief. The notice of appeal, however, was executed in Union County, Florida, on January 14, 1964.
From the record it appears that the defendant was not serving the sentence from which he sought relief at the time he filed the petition. White v. State, Fla.App., 165 So.2d 799, Opinion filed June 12, 1964; on rehearing Opinion filed July 10, 1964. Accordingly, the order appealed from is affirmed without prejudice to the defendant.
Affirmed.
SHANNON, Acting C.J., and WHITE and ANDREWS, JJ., concur.