
    Glenn DYKES, Petitioner, v. STATE of Florida, Respondent.
    No. 34827.
    Supreme Court of Florida.
    Dec. 8, 1965.
    Glenn Dykes, in pro. per.
    Earl Faircloth, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.
   PER CURIAM.

By his post-conviction application for a writ of habeas corpus, the petitioner, Dykes, claims relief against a judgment of conviction and sentence to imprisonment by the Court of Record of Escam-bia County, Florida, on December 1, 1959.

Dykes subsequently assaulted the judgment by a motion filed under our Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. He was denied relief by the trial court. The District Court of Appeal, First District, affirmed the denial. Dykes v. State of Florida (Fla.App. 1964) 162 So. 2d 675.

The District Court was of the view that Dykes had understandingly waived the right to counsel. By his petition now here, Dykes continues to assert that no waiver was reflected by the record.

The instant application for habeas corpus is denied. However, the denial is without prejudice to the right of the petitioner Dykes to move under Criminal Procedure Rule No. 1 in the Court of Record of Escambia County, in the light of our opinion in Mason v. State (Fla.1965), 176 So.2d 76, which was filed subsequent to the decision of the District Court of Appeal, First District, in Dykes v. State, supra.

It is so ordered.

THORNAL, C. J., and THOMAS, ROBERTS and O’CONNELL, JJ., concur.

CALDWELL, J., dissents.  