ORLANDO HERNANDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the petitioner made a prima facie showing of prosecutorial use of perjured testimony, entitling him to an evidentiary hearing.
Petitioner appealed the summary denial of his motion to vacate judgment, alleging the prosecutor knowingly used perjured testimony from witnesses rega…
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PER CURIAM.
Petitioner, Orlando Hernandez, appeals the summary denial of his motion to vacate judgment and sentence pursuant to Fla.R. Cr.P. 3.850. We reverse.
For the second ground in his motion to vacate, Hernandez alleged that the prosecutor knowingly used the perjured testimony of the victim and the investigating police officers with respect to material matters.
The law is well established that the willful use of false testimony upon material matters from prosecution witnesses by the prosecutor known by the latter to be perjured testimony is a recognized ground for relief from judgment. Bogan v. State, 211 So. 2d 74, 77 (Fla. 2d DCA 1968).
After a review of Hernandez’s motion for relief from judgment on the above ground and the documentary evidence in support thereof (i. e. the transcripts of testimony of his trial and the separate trial of his co-defendants made available to this court), we conclude that Hernandez has made a prima facie showing for relief and is entitled to a full evidentiary hearing thereon. Nevertheless, this determination is in no way to be construed as passing upon the merits with respect thereto.
We find no error in the summary denial of the instant motion to vacate on the first ground alleged.
Accordingly, the cause is remanded to the trial court to hold an evidentiary hearing on the motion concerning the allegations of the use of perjured testimony. See Fla.R. App.P. 9.140(g) and Bogan v. State, supra.
Affirmed in part and reversed in part.
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Monson v. State, 443 So. 2d 1061 (Fla. 1st DCA 1984)…ny upon material matters from prosecution witnesses where the prosecutor knows that the testimony is perjured constitutes a recognized ground for relief under Rule 3.850. Porterfield v. State, 442 So. 2d 1062 (Fla. 1st DCA 1983); Hernandez v. State, 368 So. 2d 606 (Fla. 3d DCA 1979). The trial court denied appellant’s 3.850 motion without an evidentiary hearing. The trial court’s order denying appellant’s 3.850 motion states that the motions, files and records in the case conclusively show that appellant is…
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Harrison Porterfield v. State, 442 So. 2d 1062 (Fla. 1st DCA 1983)…ers to the effect that the key witness at Porterfield’s trial did receive promises from the state attorney’s office in return for his testimony, we conclude and hold that Porterfield has made a prima facie showing for relief. See Hernandez v. State, 368 So. 2d 606 (Fla. 3d DCA 1979). Accordingly, the cause is remanded to the trial court to either attach that portion of the files and records which would conclusively show that Porterfield is not entitled to relief or to hold an evidentia- [*1064] ry hearing on…
Authorities Cited
- Bogan v. State, 211 So. 2d 74 (Fla. 2d DCA 1968)