
    Daniel STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 4438.
    District Court of Appeal of Florida. Second District.
    May 6, 1964.
    Walter R. Talley, Public Defender, Bra-denton, for appellant.
    James W. Kynes, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.
   PER CURIAM.

Daniel Stewart was charged with breaking a fence. He entered a plea of not guilty, was tried, found guilty by a jury, adjudged guilty and sentenced to a term in the state prison. He filed a motion, pursuant to Criminal Procedure Rule # 1, F.S.A. ch. 924 Appendix, to vacate and set aside the judgment and sentence, alleging that he was tried, convicted and sentenced without benefit of counsel at a time when he was indigent and unable to afford counsel. From an order denying relief without a hearing, he appeals.

This record shows that the court neither advised this defendant of his constitutional right to court-appointed counsel if he was insolvent, nor offered to appoint counsel for him. On a record such as this, the question as to whether or not there was a competent and intelligent waiver of the defendant’s right to counsel does not exist. An examination of the motion and the files and records of the case does not conclusively show that this prisoner is entitled to no relief. The order denying relief is reversed with directions for further proceedings in accordance with the directions given in King v. State, Fla.App. 1963, 157 So.2d 440, a decision which we note was rendered subsequent to the action of the lower court herein.

SMITH, C. J., and ALLEN and ANDREWS, JJ., concur.  