
    Franklin HENDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 34826.
    Supreme Court of Florida.
    March 30, 1966.
    
      Franklin Henderson, pro se.
    Earl Faircloth, Atty. Gen., and William D. Roth, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This cause is before us on petition for writ of habeas corpus seeking the release of petitioner who is presently in prison under a conviction of rape imposed in the Circuit Court of Okaloosa County on May 5, 1961. We issued the writ and have considered the return of the Attorney General. It now appears that the basis of the petition is the alleged denial of right to counsel, a question determinable under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix.

Petition for writ of habeas corpus is discharged without prejudice to any rights petitioner may have to proceed under Criminal Procedure Rule 1.

It is so ordered.

THORNAL, C. J., concurring specially with opinion.

THOMAS, ROBERTS, CALDWELL and ERVIN, JJ., concur.

THORNAL, Chief Justice

(concurring specially).

I concur in the discharge of the writ without prejudice to the petitioner’s rights under Criminal Procedure Rule 1. I would add further, however, that in the event that the prisoner again moves under Criminal Procedure Rule 1, in the Circuit Court for Oka-loosa County, his motion shall be heard without prejudice by any previous Rule 1 motions or petitions for habeas corpus filed in that court or in the Circuit Court of the Eighth Judicial Circuit.

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ROBERTS, CALDWELL and ERVIN, JJ., concur.  