Opinion
No. 4283.
May 20, 1964.
Appeal from the Circuit Court, Charlotte County, John D. Justice, J.
Walter R. Talley, Public Defender, Bradenton, for appellant.
James W. Kynes, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
On September 26, 1957, information was filed in the Circuit Court of the Twelfth Judicial Circuit in and for Charlotte County, charging the defendant, Robert Joseph Martin, with escape, in violation of section 944.40, Florida Statutes, F.S.A. At the time he was serving a term of ten years and three years, said sentences to be run consecutively, for unarmed robbery and automobile theft imposed by the Criminal Court of Hillsborough County, on March 3, 1951.
The defendant filed a sworn request that the judgment of conviction be set aside upon grounds this court has held to be sufficient. King v. State, Fla.App. 1963, 157 So.2d 440. The court after check of the records denied the request without hearing.
To sustain a denial of a petition under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix without hearing, the files and records of the case must affirmatively show that the defendant was represented by counsel, or that he was financially unable to employ counsel and that he competently and intelligently waived his right to counsel. The record on appeal in this case does not meet this test.
In subsequent proceedings on the motion, the court should determine if, under the circumstances, the assistance of counsel is essential to accomplish a fair and thorough presentation of the defendant's claim. Any doubt in this regard should be resolved in favor of affording counsel to the defendant. Beadles v. State, Fla.App. 1964, 162 So.2d 4.
Reversed and remanded for proceedings consistent herewith.
ALLEN, Acting C.J., and WHITE and ANDREWS, JJ., concur.