Opinion
No. F-470.
October 29, 1964.
Appeal from the Circuit Court for Bay County, Joseph W. Bailey, J.
James Rankin, in pro. per.
James W. Kynes, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for appellee.
This appeal is from a final order denying appellant's motion for relief filed pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.
From the record it appears that in 1956 appellant was informed against by the State Attorney of Bay County for the offense of robbery, to which appellant plead guilty and was sentenced to a fifteen-year term of imprisonment in the state prison.
On June 25, 1963, appellant filed in the Circuit Court of Bay County a motion for relief under Criminal Procedure Rule No. 1 to vacate and set aside his judgment of conviction and sentence imposed pursuant thereto. The grounds alleged in support of his motion were that at the time he was tried and sentenced, he was indigent and without funds to obtain counsel for his defense; that he did not have counsel to represent him at that time; that he did not know of his right to counsel and at no time did he waive his right to the appointment of counsel to represent him. The trial court set a hearing date on appellant's motion, and ordered that he be brought before the court at the time of the hearing so that he might personally assist in the presentation of his motion. On the date set for the hearing appellant was personally present before the court and represented by the Public Defender of the Fourteenth Judicial Circuit. At the hearing appellant requested permission of the court to withdraw his motion to vacate and set aside the judgment and sentence he is now serving, and announced that he desired to abandon any further claim for relief under Criminal Procedure Rule No. 1. Upon consideration of this request the court entered an order dismissing the motion for relief.
On February 21, 1964, appellant filed a second motion for relief under Criminal Procedure Rule No. 1, praying that the judgment and sentence he is now serving be vacated and set aside. Although this motion is in a more elaborate form than was the first one filed by him, it is based upon the identical grounds as were contained in the first motion which he had previously withdrawn. Upon consideration of appellant's second motion for relief, the trial court entered an order denying it upon the finding that appellant has had his day in court for any relief to which he may be entitled under Criminal Procedure Rule No. 1, and on the ground that the sentencing court is not required to entertain a second or successive motion for relief on behalf of the same prisoner. It is from this order that the appeal is taken.
Criminal Procedure Rule No. 1 pursuant to which appellant has proceeded provides that: "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." Appellant has failed to demonstrate from the record before us that the trial court abused its discretion, or otherwise violated essential requirements of law, in denying his second and successive motion for relief filed pursuant to Criminal Procedure Rule No. 1. The order appealed is accordingly affirmed.
CARROLL, DONALD K., Acting C.J., and WIGGINTON and RAWLS, JJ., concur.