Opinion
No. I-170.
May 30, 1967.
Appeal from the Circuit Court for Okaloosa County, Charles A. Wade, J.
Roy Yates, in pro. per.
Earl Faircloth, Atty. Gen., and R.L. Edwards, Asst. Atty. Gen., for appellee.
Appellant Roy Yates by this appeal seeks review of an order denying his motion to set aside and vacate two 1963 convictions, one imposing a two year sentence and the other a five year sentence, the two to run consecutively. The trial court disposed of the instant motion without granting appellant a hearing. Appellee State of Florida insists that relief by reason of Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix is not available to appellant because he is presently serving a 30 year sentence which runs concurrently with the two sentences questioned in the instant proceeding and appellant has in no instance challenged the validity of said 30 year sentence.
The record before us discloses that appellant has shown sufficient grounds warranting a hearing in the instant cases if we were only concerned with same. Since Appellant has failed to challenge the validity of the 30 year sentence which runs concurrently with those sentences now questioned, he would not be entitled to release even if he prevailed in his motion.
The judgment of the trial court is affirmed on authority of Johnson v. State, 184 So.2d 161 (Fla. 1966), and Paul v. State, 165 So.2d 779 (Fla.App.3d 1964).
RAWLS, C.J., and JOHNSON and SPECTOR, JJ., concur.