Quillian v. State

CARROLL, Judge.

W. J. Quillian, under life sentence for a 1933 armed robbery conviction, appeals an order denying without formal hearing his motion to vacate judgment and sentence, under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix, which was predicated, among other grounds, on the allegation he was indigent and denied counsel at trial.

The record shows there were three defendants. One pleaded guilty. Quillian and the other pleaded not guilty, were tried and convicted. The record discloses there were two defense attorneys who took part in the trial. It can not he determined from the record whether either of the named attorneys actually represented the appellant.

The allegation of absence of counsel for the defendant is not conclusively refuted by the files and record of the case, and for that reason the matter should he heard on notice in the trial court. See Branch v. State, Fla.App.1964, 162 So.2d 528; Caminata v. State, Fla.App.1964, 159 So.2d 921, and cases cited therein.

Accordingly the order appealed from is reversed and the cause remanded for further proceedings as provided for in Rule 1 and as indicated above.

Reversed and remanded.