EARLY BOONE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a summary denial of a motion to set aside a judgment is improper if the record does not affirmatively show the defendant was represented by counsel or competently waived that right.
Petitioner pleaded guilty to a felony and was sentenced. He later filed a motion to set aside the conviction, which the trial court summarily denied w…
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Information was filed on January 4, 1961, charging Early Boone with handling, fondling and making an assault on a female child under the age of 14 years. This is a felony as defined in Florida Statutes, section 800.04, F.S.A. On the same day he was arraigned, entered a plea of guilty, and a pre-sentence investigation was ordered. The pre-sentence investigation order was cancelled at the request of the petitioner, and on January 23, 1961, he was sentenced to be confined in the State Prison of Florida at hard labor for a term of 10 years.
The petitioner filed a sworn request that the judgment of conviction be set aside upon grounds this court has held sufficient. King v. State, Pla.App.1963, 157 So.2d 440. The court after a check of the records denied the request without hearing.
To sustain summary denial of the motion in this cause the files and records of the case must affirmatively show that the defendant was represented by counsel or that he could have been represented by counsel and that he competently and intelligently waived his right to counsel. The appealed order does not indicate that either of these factors appeared in the record and, accordingly, the order must be reversed and the cause remanded for further consideration.
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 petitioner’s claim. Any doubt in this regard should be resolved in favor of affording counsel to *527the petitioner. 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- King v. State, 157 So. 2d 440 (Fla. 2d DCA 1963)
- Beadles v. State, 162 So. 2d 4 (Fla. 2d DCA 1964)