Wilcox v. State, R--223
| Decision Date | 28 September 1972 |
| Docket Number | No. R--223,R--223 |
| Citation | 267 So.2d 15 |
| Parties | John J. WILCOX, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John J. Wilcox, in pro. per.
Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
Wilcox appeals from a summary denial of his 'Petition for Writ of Error Coram Nobis or Appropriate Relief.' The State recognizes by its brief that the appropriate relief' sought by Wilcox pro se in the trial court was a postconviction challenge to his conviction pursuant to the provisions of Rule 3.850, FRCrP, 33 F.S.A. The trial court denied Wilcox's petition without a hearing.
By his petition Wilcox alleged that in Criminal Case No. 62--3876--C, in the Criminal Court of Record of Duval, County, he was convicted of uttering of a forgery without assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution. He further alleged that he 'has fully served the said sentence' for this conviction and 'is now confined in the United States Penitentiary at Atlanta, Georgia, where such sentence was used to enhance punishment on his present Federal sentence.'
The State argues, citing this Court's opinion in Young v. State, 1 that Wilcox's petition is not cognizable because he has admittedly served the sentence imposed by the challenged conviction. The foregoing cited decision does stand for the State's position; however, Assistant Attorney General Allbritton commendably calls to our attention the decision of the Second District Court of Appeal in Reynolds v. State, 224 So.2d 769 (2 Fla.App.1969), and the Supreme Court's approval of same, State v. Reynolds, 238 So.2d 598 (Fla.1970). In his brief, the able Assistant Attorney General tells us: 'A reading of Reynolds v. State reveals that the opinion is long on prose and short on factual recitation', and then reasons that the case is not applicable to the instant facts. We do not agree.
As we understand the Supreme Court's decision in Reynolds, a petitioner incarcerated in another state is 'in custody' within the meaning of Rule 3.850, FRCrP, for purposes of postconviction remedies. This decision by our Supreme Court, coupled with the federal Supreme Court's opinion in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), clearly grants to Wilcox the opportunity to challenge his prior conviction, even though sentence for same has long ago been served. We note that in Tucker the Supreme Court of the United States affirmed a decision of the U.S. Court of Appeals,...
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Brown v. United States
...which such prior conviction was had—and no one of the three prior convictions here challenged arose in this court." 5 Wilcox v. Florida (Fla.Ct.App.1972) 267 So.2d 15, 16. 6 To the same effect are Slaton v. United States (D.C.Ill.1973) 356 F.Supp. 1172 and United States v. Wendt (D.C.Ga. 19......
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Weir v. State, 75--697
...he is serving was enhanced by the conviction he seeks to have set aside. State v. Reynolds, Fla.1970, 238 So.2d 598; Wilcox v. State, Fla.App.1st, 1972, 267 So.2d 15. But no Florida court has held that a person not in custody is entitled to relief under Rule 3.850, RCrP. Judge Barns' opinio......
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Pair v. State, s. 72-738
...So.2d 160 (3d D.C.A.Fla.1970); Reynolds v. State, 224 So.2d 769 (2d D.C.A.Fla.1969); aff'd 238 So.2d 598 (Fla.1970); Wilcox v. State, 267 So.2d 15 (1st D.C.A.Fla.1972). Such patently illegal convictions have justifiably been set aside despite the technical requirements of the language of th......
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Bryan v. State, 76--557
...our Supreme Court's holding in State v. Reynolds, 238 So.2d 598 (Fla.1970), and with an earlier First District opinion, Wilcox v. State, 267 So.2d 15 (Fla.1st DCA 1972). We disagree with the Chapman and Parks decisions and hold that under Reynolds supra, a prisoner in the custody of a state......