Branch v. State

District Court of Appeal of Florida

Branch v. State

162 So. 2d 528, 1964 Fla. App. LEXIS 4641

CourtDistrict Court of Appeal of Florida

DecidedMarch 17, 1964

DocketNo. 63-577

StatusPublished

Cited by3 cases

This text of 162 So. 2d 528 (Branch v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Branch v. State, 162 So. 2d 528, 1964 Fla. App. LEXIS 4641 (Fla. Ct. App. 1964).

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Opinion

HORTON, Judge.

This appeal is from the denial of appellant’s motion for new trial considered by the trial court as a motion to vacate or set aside a judgment and conviction pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. The appellate courts of this state have already passed on questions similar to those raised by this appeal. Therefore, upon the authority of King v. State, Fla.App. 1963, 157 So.2d 440, and Barker v. State, Fla.App.1964, 159 So.2d [529]*529676, and cases cited therein, this cause must be reversed.

The record in this cause is silent as to whether or not appellant requested counsel or whether or not he was offered counsel. Silence alone does not create a presumption that he waived his constitutional right. Under Rule 1, unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court should cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing, determine the issues and make findings of fact and conclusions of law. It is true the trial court conducted a hearing and made certain findings of fact and conclusions of law, but they are not supported by the record before us.

Accordingly, the matter should be set down and the provisions of the rule complied with in respect to a subsequent hearing.

Reversed with directions.

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HORTON, Judge.

This appeal is from the denial of appellant’s motion for new trial considered by the trial court as a motion to vacate or set aside a judgment and conviction pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. The appellate courts of this state have already passed on questions similar to those raised by this appeal. Therefore, upon the authority of King v. State, Fla.App. 1963, 157 So.2d 440, and Barker v. State, Fla.App.1964, 159 So.2d [529]*529676, and cases cited therein, this cause must be reversed.

The record in this cause is silent as to whether or not appellant requested counsel or whether or not he was offered counsel. Silence alone does not create a presumption that he waived his constitutional right. Under Rule 1, unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court should cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing, determine the issues and make findings of fact and conclusions of law. It is true the trial court conducted a hearing and made certain findings of fact and conclusions of law, but they are not supported by the record before us.

Accordingly, the matter should be set down and the provisions of the rule complied with in respect to a subsequent hearing.

Reversed with directions.

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Bluebook (online)

162 So. 2d 528, 1964 Fla. App. LEXIS 4641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branch-v-state-fladistctapp-1964.

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