Walker v. State

259 So. 2d 181, 1972 Fla. App. LEXIS 7059

Opinion

LILES, Judge.

Appellant, Cleon Donald Walker, was convicted of the charge of being an habitual criminal. Following his conviction by jury on February 1, 1963, appellant was sentenced to life imprisonment. In May 1971, appellant filed his Rule 1.850, 33 F.S.A., motion to vacate judgment and sentence based upon the fact that in the two prior convictions he was not represented by counsel.

In March 1963, Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, was decided providing that all defendants must be represented by counsel and subsequent case law provides that Gideon is retroactive.

We believe the trial judge was in error in summarily dismissing defendant’s Rule 1.850 motion and we remand the cause with directions that the trial judge hold an evi-dentiary hearing with petitioner represented by counsel and make a determination of fact as to whether petitioner was properly convicted pursuant to Gideon of the two prior crimes.

Reversed and remanded.

PIERCE, C. J., and HOBSON, J., concur.