Opinion
No. 68-574.
February 7, 1969.
Appeal from the Circuit Court for Manatee County, Robert E. Willis, J.
Walter R. Talley, Public Defender, Bradenton, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and M.J. Hanlon, Asst. Atty. Gen., Lakeland, for appellee.
ON MOTION TO QUASH
The state has moved to quash this appeal, which is from an order of the circuit court denying a post-conviction motion for discharge under Criminal Procedure Rule 1.850, 33 F.S.A.
Petitioner-appellant is currently in custody serving a valid sentence in state prison imposed on September 1, 1967, as the result of a jury verdict of guilty of breaking and entering with intent to commit a felony.
In his motion for post-conviction relief, petitioner has attacked a judgment and sentence dated December 11, 1957, in which he was found guilty of exhibiting obscene literature. In petitioner's motion for post-conviction relief, he has not attacked the validity of the sentence for which he is currently in custody.
Therefore, the motion to quash is granted under the authority of Johnson v. State, Fla. 1966, 184 So.2d 161; Escue v. State, Fla.App. 1966, 192 So.2d 524, and Yates v. State, Fla.App. 1967, 199 So.2d 340.
LILES, C.J., and HOBSON and McNULTY, JJ., concur.