McDowell v. State

195 So. 2d 586

Opinion

PER CURIAM.

This is an appeal from an order denying appellant’s motion to vacate and set aside conviction and sentence under Criminal Procedure Rule No. 1, F.S.A. Chapter 924, Appendix.

Review of the record on appeal and briefs herein reflects that at the time appellant filed his Rule 1 motion in the trial court, he was serving a lawfully imposed sentence other than the sentence which his motion attacks.

It is clear that before relief by motion under Criminal Rule 1 may be sought, it must appear that a favorable ruling upon such a motion will result in release of the movant from custody. Such a showing cannot be made, of course, where the record on appeal reflects, as is here the case, the existence of a valid sentence being served contemporaneously with the sentence under assault. Johnson v. State, 184 So.2d 161 (Fla. 1966).

The order of the lower court is affirmed.

WIGGINTON, Acting C. J., and SPECTOR and CARROLL, DONALD K., JJ., concur.