Opinion
No. F-111.
June 4, 1964.
Appeal from the Criminal Court of Record, Duval County, A. Lloyd Layton, J.
T. Edward Austin, Jr., Public Defender, for appellant.
James W. Kynes, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for appellee.
This appellant appeals an order entered by the Criminal Court of Record of Duval County, Florida, wherein Judge Layton of that court denied a hearing upon the contents of his motion. The subject motion clearly alleges a prima facie case entitling the movant to relief in accordance with the provisions of Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. The record in the cause does not refute the allegations set forth by petitioner. Therefore, in accordance with the language of said rule — "* * * Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. * * *" appellant is entitled to a prompt hearing.
The trial court arbitrarily refused to so comply with the material provisions of the rule in this cause. The order of the trial judge denying relief is hereby set aside and he is directed to forthwith grant to petitioner a hearing as provided for in said rule.
STURGIS, C.J., and WIGGINTON and RAWLS, JJ., concur.