WHITE v. STATE, 165 So.2d 799 (Fla.App. 2 Dist. 1964)

JACK G. WHITE, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 4731.District Court of Appeal of Florida, Second District.
June 12, 1964. Rehearing Denied July 10, 1964.

Appeal from the Criminal Court of Record of Orange County, Richard H. Cooper, J.

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W.D. Frederick, Jr., Public Defender, and Joseph X. Dumond, Jr., Asst. Public Defender, Orlando, for appellant.

James W. Kynes, Atty. Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

PER CURIAM.

The defendant appeals a denial of his motion to vacate under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.

This defendant was convicted of armed robbery and sentenced by the Criminal Court of Record of Orange County, Florida, on November 22, 1948, to ten years in the state penitentiary, the sentence to begin at the expiration of a previous sentence. He entered a plea of guilty and apparently did not have an attorney. At this time the defendant was already a prisoner of the State, having served two years of a twenty-one year sentence imposed in another county. The trial court found as a matter of fact that the prisoner was being held in custody by the Division of Corrections, not by virtue of any commitment of the Criminal Court of Record of Orange County, Florida, but by virtue of a commitment of the Criminal Court of Record of Duval County, Florida.

Criminal Procedure Rule No. 1 is available only to a person in custody under the sentence which he is moving to vacate. The defendant, who is serving a sentence different from the one which he is moving to vacate, is not entitled to relief.

Affirmed.

ALLEN, Acting C.J., and SHANNON and WHITE, JJ., concur.

ON PETITION FOR REHEARING
PER CURIAM.

Appellant has filed a petition for rehearing, the basis of which is a letter which this court has received from the Director of the Florida Division of Corrections, stating that on July 26, 1963, appellant’s previous sentence imposed in Duval County, Florida, was vacated, and that he is now serving the sentence which was the subject of his motion to vacate under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.

The original opinion in this case affirmed the trial court. When the motion to vacate the sentence of the Criminal Court of Record of Orange County was filed, the defendant was actually serving a sentence imposed in Duval County. The trial court rightfully denied the motion and we affirmed. However, it appears from the letter from the Director that the defendant is now serving the sentence of the Criminal Court of Record of Orange County which he was moving to vacate and that he would be entitled to a hearing by the trial court upon proper pleadings.

The petition for rehearing is denied. However, in view of the foregoing, it is appropriate that we amend our affirmance of our previous opinion so as to make the substantive part of that opinion be without prejudice to the defendant.

ALLEN, Acting C.J., and SHANNON and WHITE, JJ., concur.

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