
    Archie Lee DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1-197.
    District Court of Appeal of Florida. First District.
    Dec. 14, 1967.
    On Rehearing Jan. 25, 1968.
    Archie Lee Davis, in pro. per.
    Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appellant filed a Motion to Vacate Judgment and Sentence under a Rule 1 proceeding. An evidentiary hearing on said motion was ordered by the Circuit Judge and the hearing held in accordance therewith. Testimony was taken at the hearing, but for some reason the attorney representing the appellant at said hearing did not require a record to be made of such testimony, nor an agreed statement of fact as to such testimony made and filed.

The motion was denied and the defendant has appealed. Appellant was granted an extension of time within which to file his brief. No record on appeal was filed and this Court entered its Order on October 23, 1967 directing the Clerk of the Circuit Court to prepare and file with this Court within 30 days from said date a transcript of the testimony taken at the Rule 1 hearing.

It now appearing to the Court from correspondence of the Clerk of Circuit Court that no record of the testimony was made, and the appellant being entitled to an appellate review of this hearing and this Court having nothing before it upon which we can base a determination, we have no alternative except to reverse the Order appealed from and we do therefore, reverse the Order denying the relief prayed for in the Rule 1 proceeding and remand said cause to the trial court to grant the appellant a further evidentiary hearing and at which the testimony shall be reported for further use in the event of a further appeal from any order made at this second hearing.

WIGGINTON, C. J., and JOHNSON and SPECTOR, JJ., concur.

ON PETITION FOR REHEARING.

PER CURIAM.

This matter is before this court on petition for rehearing, requesting this court to reconsider its opinion filed December 14, 1967, wherein this court reversed the trial court’s order denying the appellant-defendant relief under a Rule One motion.

We have carefully considered the State’s petition for a rehearing and the cases cited therein, and while this court does not recede from its position that the appellant is entitled to a full review of the proceedings had in the trial court on appellant’s Rule One motion, this court does recede from that portion of its opinion filed December 14, 1967, granting the appellant a further evidentiary hearing on his motion, and in lieu thereof, it is the determination of this court, and we so hold that said cause is remanded to the lower court, and-we temporarily relinquish jurisdiction for that purpose, with direction that the Public Defender and the attorney representing the State at said hearing, assisted by the trial court if necessary, compile an agreed statement of fact of the proceedings had on said Rule One motion, including the substance of the testimony of the witnesses, and to report the same to this court within 30 days from the date of publication of this opinion and in default thereof, the original opinion of December 14, 1967, shall automatically be reinstated and compliance therewith ordered.

The Opinion of December 14, 1967 is therefore withdrawn and receded from conditionally, upon a compliance with and in accordance with the foregoing.

WIGGINTON, C. J., and JOHNSON and SPECTOR, JJ., concur.  