McDowell v. State

District Court of Appeal of Florida

McDowell v. State

195 So. 2d 586

CourtDistrict Court of Appeal of Florida

DecidedMarch 2, 1967

DocketNo. I-285

StatusPublished

Cited by2 cases

This text of 195 So. 2d 586 (McDowell 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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McDowell v. State, 195 So. 2d 586 (Fla. Ct. App. 1967).

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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.

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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.

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195 So. 2d 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdowell-v-state-fladistctapp-1967.

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