Polo v. State

PER CURIAM. This is an appeal from a summary denial of appellant’s motion to vacate judgment and sentence pursuant to Rule 1.850, Florida Rules of Criminal Procedure, 33 F.S.A. The ground for the summary denial as set out in the order denying the motion is: “That the movant is not presently incarcerated from any sentence having been imposed upon him in this cause”. The order of the trial judge was in accord with prior holdings of the appellate courts of this state. See, e. g., Fretwell v. Wainwright, Fla.1966, 185 So.2d 701. However, since appellant is presently imprisoned in Florida, it is not a proper ground under the law of this state as set forth in Lawson v. State, Fla.App.1969, 225 So.2d 581; Lawson v. State, Fla.1970, 231 So.2d 205; Reynolds v. State, Fla.App.1969, 224 So.2d 769; State v. Reynolds, Supreme Court, 238 So.2d 598, opinion filed March 11, 1970. Accordingly, the order denying appellant’s motion is reversed with directions to proceed upon the merits of the motion. Reversed and remanded.