Wingard v. State

210 So. 2d 472, 1968 Fla. App. LEXIS 5570

Opinion

PER CURIAM.

Petitioner is appealing from the summary denial of his Criminal Procedure Rule No. 1 motion. In order to obtain post-conviction relief under Rule No. 1 (now R.Cr.P. 1.850, 33 F.S.A.), it is necessary that one seeking such relief be in custody by virtue of the sentence appealed from. An appeal from a judgment denying a motion for post-conviction relief under Rule No. 1 becomes moot upon completion of the service of the sentence. Desrosiers v. State, Fla.App.1966, 189 So.2d 834; Smith v. State, Fla.App.1965, 175 So.2d 243; Young v. State, Fla.App.1964, 167 So.2d 622. It appears from the record that the sentence appealed from has already expired. Accordingly, petitioner’s appeal must be dismissed.

LILES, C. J., and ALLEN and PIERCE, JJ., concur.