Mills v. State, 4194

• Decision Date: 03 April 1964
• Docket Number: No. 4194,4194
• Citation: 162 So.2d 521
• Parties: Eldon E. MILLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 521

162 So.2d 521

Eldon E. MILLS, Appellant, v. STATE of Florida, Appellee.

No. 4194.

District Court of Appeal of Florida, Second District.

April 3, 1964.

Walter R. Talley, Public Defender, Bradenton, for appellant.

James W. Kynes, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

PER CURIAM.

The order here appealed, summarily denying motion for relief under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, is predicated on findings of fact as to matters outside the record and must be reversed. Caminita v. State, Fla.App.1964, 159 So.2d 921. The contention, made on appeal, that the absence of an express allegation that the right to counsel was not waived is preclusive of relief cannot, in view of the clear implication of non-waiver in the allegations made, be sustained. Sampson v. State, Fla.App.1963, 158 So.2d 771.

Upon remand of the cause the lower court should proceed to a prompt disposition of the motion, including any amendments heretofore made or hereinafter timely filed, and should, if appropriate to accomplish a fair and thorough presentation of appellant's claim, afford appellant the services of appointed counsel in such further proceedings as are necessary. State v. Weeks, Fla.1964, 166 So.2d 892, reversing Fla.App., 156 So.2d 36.

Reversed and remanded.

ALLEN, Acting C. J., and SHANNON and WHITE, JJ., concur.