Branning v. State

195 So. 2d 239

Opinion

PER CURIAM.

By this appeal, the appellant seeks review of an order denying his petition for relief [in the nature of that provided by Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix] in two causes lately pending in the Criminal Court of Record in and for Dade County, Florida; one under Clerk’s File No. 59-5515 and the other under Clerk’s File No. 61-2570. The consolidated motion was considered by the court on March 18, 1966, and denied as to Cause No. 59-5515 because the appellant had theretofore completed the sentence imposed in said'cause. The relief sought in Cause No. 61-2570 was denied because it affirmatively appeared that he was not presently incarcerated by virtue of the sentence imposed in said cause. The summary denial of the relief sought by the appellant on this latter ground was erroneous, and the trial court should have made inquiry into the merits of the petition. In this connection see: Johnson v. State, Fla.1966, 184 So.2d 161.¹

Therefore, the order under review is hereby reversed, and this matter is returned to the trial court for further proceedings.

This shall not entitle the appellant to be present at the hearing on his motion, unless the trial court at its discretion should so direct.

Reversed and remanded with directions.

1 . It is noted that this opinion had not become final until April 20, 1966, subsequent to the trial court’s order here under review. See: Johnson, v. State, Fla.1966, 185 So.2d 466.