Opinion
No. 69-819.
April 28, 1970.
Appeal from the Criminal Court of Record for Dade County, Paul Baker, J.
Hughlan Long, Public Defender, and Alan S. Becker, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., for appellee.
Before PEARSON, C.J., and HENDRY and SWANN, JJ.
Appellant seeks review of an order denying without hearing, his amended motion to vacate judgment and sentence pursuant to Cr. PR 1.850, 33 F.S.A.
Appellant was convicted of the crime of robbery and sentenced to a term of thirty years in the state penitentiary.
One of appellant's contentions is that the trial court erred in summarily denying his motion to vacate where it was made to appear from the motion that one of the prosecuting attorneys had previously been employed by his defense counsel.
We find merit in this contention and reverse for an evidentiary hearing to determine the issue of fact raised by the motion as to this point. Should the allegation be well founded, a new trial will be required. Young v. State, Fla.App. 1965, 177 So.2d 345.
Appellant's second point has also been considered and found to be without merit.
For the reason stated, the order appealed is reversed and the cause remanded for a hearing and possible new trial in accordance with Cr. PR 1.850.
Reversed and remanded.