STATE v. REYNOLDS, 238 So.2d 600 (Fla. 1970)

STATE OF FLORIDA, PETITIONER, v. MADISON LEE REYNOLDS, RESPONDENT.

No. 38849.Supreme Court of Florida.
March 11, 1970. Rehearing Denied April 20, 1970.

Petition from the Circuit Court, DeSoto County, John D. Justice, J.

Page 601

Earl Faircloth, Atty. Gen., and James Robert Yon, Asst. Atty. Gen., for petitioner.

Walter R. Talley, Public Defender, and D. Turner Matthews, Asst. Public Defender, for respondent.

ADKINS, Justice.

By petition for certiorari, we are requested to review a decision of the District Court of Appeal, Second District (224 So.2d 772) because of alleged conflict with prior decision of this Court.

This case differs from State v. Reynolds, Fla., 238 So.2d 598
only in that it involves an order entered by the Circuit Judge of another county after a second petition for post-conviction relief had been filed. Each petition was denied because respondent was incarcerated in the State of Texas.

The motion to vacate under consideration was the second one filed by respondent, each of which was based upon the contention that respondent was without counsel at critical stages of the proceedings against him. Each of the two denials were based upon the fact that respondent was not “in custody.” Under these circumstances the Court is not precluded from considering the correctness of the summary denial of respondent’s contention that he was without counsel on the ground that this contention was previously rejected, Lawson v. State, Fla., 231 So.2d 205
(opinion filed January 28, 1970), for the question was not determined by the Circuit Judge.

The writ of certiorari is discharged.

ERVIN, C.J., DREW and CARLTON, JJ., and HENDRY, District Judge, concur.