Opinion
No. 34508.
March 23, 1966. Rehearing Denied April 15, 1966.
James Vertree, in pro. per.
Earl Faircloth, Atty. Gen., and John S. Burton, Asst. Atty. Gen., for respondent.
The petitioner seeks release from the State prison on an application for a writ of habeas corpus.
It appears that the petitioner has previously applied to the trial judge for relief under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. His application was denied without an evidentiary hearing. The denial was affirmed by the District Court of Appeal. Vertree v. State, 168 So.2d 771. The application for habeas corpus here indicates the possibility that the petitioner may be entitled to an evidentiary hearing in view of our opinion in Mason v. State, 176 So.2d 76. Our opinion in Mason was rendered subsequent to the judgment of the trial court and subsequent to the decision of the District Court of Appeal in Vertree v. State, supra.
The writ of habeas corpus heretofore issued herein is discharged and the petitioner is remanded to custody without prejudice, however, to the privilege of renewing his motion under Criminal Procedure Rule No. 1 in the trial court for reconsideration by the trial judge in the light of our opinion in Mason v. State, supra.
It is so ordered.
THORNAL, C.J., and THOMAS, ROBERTS, O'CONNELL and BARNS (Ret.), JJ., concur.