Opinion
Nos. 4327, 5017.
May 22, 1964.
On February 7, 1964, this court affirmed an order of the Criminal Court of Record of Orange County denying a motion for relief filed by Theodore N. Turner under the provisions of Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, Turner v. State, Fla.App., 161 So.2d 11. The affirmance of this order was without prejudice to the right of the appellant to file in the lower court a proper and sufficient motion and to be afforded an opportunity to establish, if he could, the facts and circumstances surrounding his conviction and sentence upon which he relies as being sufficient to require the vacation of his sentence.
Subsequently the appellant filed a Petition for Writ of Habeas Corpus alleging that, in accordance with the opinion of this court, he filed in the trial court an amended motion for relief which was, on March 26, 1964, denied on the ground that "the sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner."
This Petition was considered as a motion to enforce the Mandate of this court issued on March 10, 1964, in the case of Turner v. State, Fla.App., 161 So.2d 11, and the Attorney General was directed to file a response to the motion.
Issue having been joined upon the appellant's motion to enforce mandate, the response thereto and a partial record of proceedings in the lower court, and it appearing that the matters presented could and should most appropriately be considered upon appeal from the March 26th order, which appeal would afford appellant a full and adequate remedy, it is therefore
Ordered and adjudged that the Petition for Writ of Habeas Corpus be denied and that the Petition, considered as a motion to enforce mandate, be denied, all without prejudice to appellant's right to file timely Notice of Appeal in the lower court.
SMITH, C.J., and ALLEN and SHANNON, JJ., concur.