Opinion
No. G-268.
August 16, 1966.
Appeal from the Criminal Court of Record, Escambia County, Kirke M. Beall, J.
Bobby Lee Coleman, in pro. per.
Earl Faircloth, Atty. Gen., and Thomas E. Boyle, Asst. Atty. Gen., for appellee.
Bobby Lee Coleman has appealed from an order denying his motion to vacate on the grounds that he had filed a previous petition alleging the same facts, that the previous petition had been denied, and that the present petition is without merit.
The record on appeal contains the two motions, the second being a copy of the first. These motions allege that in 1955 the appellant was charged with robbery, pleaded guilty, was adjudged guilty and sentenced to 10 years in prison. They further allege that he was an indigent and did not have counsel. The first motion was denied on the grounds that the defendant knowingly, understandingly, and intelligently pleaded guilty to the offense for which he was charged. There was no appeal. The second motion, as stated above, was denied partially on the grounds that the prior motion precluded reconsideration of the subject.
The record contains no evidence that Coleman had counsel, was offered counsel, or waived counsel. We find that the motion sets forth facts which, if true, would entitle the movant to have his judgment and sentence vacated and a new trial granted. The record does not conclusively show that the appellant is not entitled to relief. The prior denial was entered without a hearing for the appellant and decided on a point not decisive of the question in issue here. Under these circumstances the prior denial is not conclusive of the second or successive motion.
King v. State, 157 So.2d 440 (Fla.App. 2d 1963) and Corrie v. State, 177 So.2d 547 (Fla.App.1st, 1965).
Archer v. State, 166 So.2d 163 (Fla.App.2d 1964).
The order denying relief is reversed.
RAWLS, C.J., and JOHNSON and SACK, JJ., concur.