White v. State

PER CURIAM.

The defendant appeals a denial of his motion to vacate under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.

This defendant was convicted of armed robbery and sentenced by the Criminal Court of Record of Orange County, Florida, on November 22, 1948, to ten years in the state penitentiary, the sentence to begin at the expiration of a previous sentence. He entered a plea of guilty and apparently did not have an attorney. At this time the defendant was already a prisoner of the State, having served two years of a twenty-one year sentence imposed in another county. The trial court found as a matter of fact that the prisoner was being held in custody by the Division of Corrections, not by virtue of any commitment of the Criminal Court of Record of Orange County, Florida, but by virtue of a commitment of the Criminal Court of Record of Duval County, Florida.

Criminal Procedure Rule No. 1 is available only to a person in custody under the sentence which he is moving to vacate. The defendant, who is serving a sentence different from the one which he is moving to vacate, is not entitled to relief.

Affirmed.

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