Opinion
No. 4378.
May 8, 1964.
Appeal from the Criminal Court of Record for Orange County, Richard H. Cooper, J.
Joseph X. DuMond, Jr., Assistant Public Defender, Orlando, for appellant.
James W. Kynes, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
Earl Frank Hoffman appeals an order denying his motion to vacate judgment and sentence filed pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. Appellant's motion failed to allege that he was indigent and unable to employ counsel at the time he entered his plea. The motion therefore was legally insufficient. See Dias v. State, Fla.App. 1963, 158 So.2d 766; Savage v. State, Fla.App. 1963, 156 So.2d 566; Auflick v. State, Fla. App. 1963, 158 So.2d 767; Duke v. State, Fla.App. 1964, 162 So.2d 549.
The order appealed is therefore affirmed without prejudice to appellant's right to refile his motion in accordance with the rule announced in Turner v. State, Fla.App. 1964, 161 So.2d 11.
Affirmed.
SMITH, C.J., and SHANNON and WHITE, JJ., concur.