
    Sammy BRANCH, Appellant, v. The STATE of Florida, Appellee.
    No. 63-577.
    District Court of Appeal of Florida. Third District.
    March 17, 1964.
    Rehearing Denied April 24, 1964.
    Robert L. Koeppel, Public Defender, W. Eugene Neill and Marco Loffredo, Asst. Public Defenders, for appellant.
    James W. Kynes, Jr., Atty. Gen., and Leonard R. Mellon, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HORTON and TILLMAN PEARSON, JJ.
   HORTON, Judge.

This appeal is from the denial of appellant’s motion for new trial considered by the trial court as a motion to vacate or set aside a judgment and conviction pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. The appellate courts of this state have already passed on questions similar to those raised by this appeal. Therefore, upon the authority of King v. State, Fla.App. 1963, 157 So.2d 440, and Barker v. State, Fla.App.1964, 159 So.2d 676, and cases cited therein, this cause must be reversed.

The record in this cause is silent as to whether or not appellant requested counsel or whether or not he was offered counsel. Silence alone does not create a presumption that he waived his constitutional right. Under Rule 1, unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court should cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing, determine the issues and make findings of fact and conclusions of law. It is true the trial court conducted a hearing and made certain findings of fact and conclusions of law, but they are not supported by the record before us.

Accordingly, the matter should be set down and the provisions of the rule complied with in respect to a subsequent hearing.

Reversed with directions.  