L’Hommedieu v. State 362 So. 2d 72

PER CURIAM.

In his motion filed under Fla.R.Crim.P. 3.850, appellant alleges that he did not have counsel when he was convicted in 1952 and sentenced to three years imprisonment. Obviously, appellant is not now serving this three-year sentence. The motion does not state whether he is presently incarcerated and, if so, how or whether his original sentence affected his current sentence. See State v. Reynolds, 238 So.2d 598 (Fla.1970). If he merely seeks to expunge his conviction from the record, he should say so pursuant to the authority of Weir v. State, 319 So.2d 80 (Fla.2d DCA 1975). Therefore, the denial of his motion is affirmed without prejudice.

GRIMES, C. J., and SCHEB and RYDER, JJ., concur.

ON PETITION FOR REHEARING

In his pro se petition for rehearing appellant has stated additional facts. Since this court cannot entertain new facts not presented to the court below, the petition is denied. The appellant is at liberty to file in the trial court another motion under Fla.R. Crim.P. 3.850 setting forth under oath such additional facts as may be pertinent to his request for relief.

GRIMES, C. J., and SCHEB and RYDER, JJ., concur.