Pair v. State

District Court of Appeal of Florida

Pair v. State

275 So. 2d 581, 1973 Fla. App. LEXIS 7091

CourtDistrict Court of Appeal of Florida

DecidedFebruary 16, 1973

DocketNos. 72-738, 72-739

StatusPublished

This text of 275 So. 2d 581 (Pair 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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Pair v. State, 275 So. 2d 581, 1973 Fla. App. LEXIS 7091 (Fla. Ct. App. 1973).

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Opinion

LILES, Judge.

The appellant James Pair filed two CrPR 3.850, 33 F.S.A. motions to vacate and set aside his sentence in separate cases. Since this question is the same in both cases, we have combined them for the purposes of this opinion. The trial judge denied both motions without evidentiary hearings. Both motions alleged that appellant was without counsel in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in that he was not represented by counsel in either trial of the prior cases.

The trial judge denied the motions since appellant was not in custody under either of the two sentences. We believe it was error and reverse on the authority of Rose v. State, 235 So.2d 353 (3d D.C.A.Fla.1970); Polo v. State, 238 So.2d 160 (3d D.C.A.Fla.1970); Reynolds v. State, 224 So.2d 769 (2d D.C.A.Fla.1969); aff’d 238 So.2d 598 (Fla.1970); Wilcox v. State, 267 So.2d 15 (1st D.C.A.Fla.1972).

Such patently illegal convictions have justifiably been set aside despite the technical requirements of the language of the rule requiring custody.

We therefore remand both cases to the trial court for an evidentiary hearing to determine whether the appellant’s allegations that he was unconstitutionally deprived of counsel are well founded; and, if so, the appellant’s motions should be granted.

Reversed and remanded with directions.

MAÑ'N, C. J., and McNULTY, J., concur.

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LILES, Judge.

The appellant James Pair filed two CrPR 3.850, 33 F.S.A. motions to vacate and set aside his sentence in separate cases. Since this question is the same in both cases, we have combined them for the purposes of this opinion. The trial judge denied both motions without evidentiary hearings. Both motions alleged that appellant was without counsel in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in that he was not represented by counsel in either trial of the prior cases.

The trial judge denied the motions since appellant was not in custody under either of the two sentences. We believe it was error and reverse on the authority of Rose v. State, 235 So.2d 353 (3d D.C.A.Fla.1970); Polo v. State, 238 So.2d 160 (3d D.C.A.Fla.1970); Reynolds v. State, 224 So.2d 769 (2d D.C.A.Fla.1969); aff’d 238 So.2d 598 (Fla.1970); Wilcox v. State, 267 So.2d 15 (1st D.C.A.Fla.1972).

Such patently illegal convictions have justifiably been set aside despite the technical requirements of the language of the rule requiring custody.

We therefore remand both cases to the trial court for an evidentiary hearing to determine whether the appellant’s allegations that he was unconstitutionally deprived of counsel are well founded; and, if so, the appellant’s motions should be granted.

Reversed and remanded with directions.

MAÑ'N, C. J., and McNULTY, J., concur.

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275 So. 2d 581, 1973 Fla. App. LEXIS 7091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pair-v-state-fladistctapp-1973.

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