Hendley v. State

District Court of Appeal of Florida

Hendley v. State

163 So. 2d 12, 1964 Fla. App. LEXIS 4685

CourtDistrict Court of Appeal of Florida

DecidedApril 22, 1964

DocketNo. 4152

StatusPublished

Cited by1 cases

This text of 163 So. 2d 12 (Hendley 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.

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Hendley v. State, 163 So. 2d 12, 1964 Fla. App. LEXIS 4685 (Fla. Ct. App. 1964).

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Opinion

PER CURIAM.

Wesley Hendley appeals an order denying his motion for post-conviction relief, filed pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. Of the many reasons stated by the trial court as bases for denying relief, none are valid— because the findings are either contrary to the record or entirely dehors the record. We have previously said that motions filed under Rule No. 1 may not be denied without a hearing unless an examination of the motion and the files and records of the cause conclusively show that the’ prisoner is entitled to no relief. King v. State, Fla. App.1963, 157 So.2d 440. Findings of facts outside the record cannot form the basis for summary denial of such a motion. Keur v. State, Fla.App.1963, 160 So.2d 546. Likewise, findings of fact contrary to the record cannot form the basis for denying relief. Where, as here, the record is silent as to whether or not an insolvent defendant requested counsel or was offered counsel, there can be no presumption that such defendant waived his constitutional right to counsel. King v. State, supra.

Notwithstanding the fact that the trial court’s order was based upon erroneous reasons, the order must neverthe[13]*13less be affirmed. The appellant’s motion did not allege that he was insolvent at the time he entered his plea of guilty. Dias v. State, Fla.App.1963, 158 So.2d 766.

The order is affirmed without prejudice to appellant’s right to file a subsequent motion in the trial court in accordance with the procedure prescribed in the concluding statement made by this Court in Turner v. State, Fla.App.1964, 161 So.2d 11, at 12.

SMITH, C. J., and ALLEN and ANDREWS, JJ., concur.

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PER CURIAM.

Wesley Hendley appeals an order denying his motion for post-conviction relief, filed pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. Of the many reasons stated by the trial court as bases for denying relief, none are valid— because the findings are either contrary to the record or entirely dehors the record. We have previously said that motions filed under Rule No. 1 may not be denied without a hearing unless an examination of the motion and the files and records of the cause conclusively show that the’ prisoner is entitled to no relief. King v. State, Fla. App.1963, 157 So.2d 440. Findings of facts outside the record cannot form the basis for summary denial of such a motion. Keur v. State, Fla.App.1963, 160 So.2d 546. Likewise, findings of fact contrary to the record cannot form the basis for denying relief. Where, as here, the record is silent as to whether or not an insolvent defendant requested counsel or was offered counsel, there can be no presumption that such defendant waived his constitutional right to counsel. King v. State, supra.

Notwithstanding the fact that the trial court’s order was based upon erroneous reasons, the order must neverthe[13]*13less be affirmed. The appellant’s motion did not allege that he was insolvent at the time he entered his plea of guilty. Dias v. State, Fla.App.1963, 158 So.2d 766.

The order is affirmed without prejudice to appellant’s right to file a subsequent motion in the trial court in accordance with the procedure prescribed in the concluding statement made by this Court in Turner v. State, Fla.App.1964, 161 So.2d 11, at 12.

SMITH, C. J., and ALLEN and ANDREWS, JJ., concur.

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163 So. 2d 12, 1964 Fla. App. LEXIS 4685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendley-v-state-fladistctapp-1964.

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