ARNOLD RAYBURN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the allegations in the appellant's motion to vacate the judgment and sentence were not refuted by the record and required an evidentiary hearing.
Appellant filed a motion for relief under Criminal Procedure Rule No. 1, alleging perjured testimony known to the State at trial. This motion was deni…
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The appellant, Arnold Rayburn, has appealed an order entered by the Criminal Court of Record of Hillsborough County, Florida, denying his motion for relief under Criminal Procedure Rule No. 1, F.S.A. Ch. 924 Appendix. We are of the opinion that the allegations in appellant’s motion to vacate the judgment and sentence have not been refuted by the record. We refer especially, to appellant’s allegation that at the time of his trial certain of the testimony adduced was perjured and that the State was aware, at the time, that the testimony given was of that character.
The court in its order pointed out that appellant has previously appealed to this court and that we affirmed the judgment and sentence rendered against the appellant. See Rayburn v. State, Fla.App.1966, 188 So.2d 374. On that appeal the issues here raised were not before us, nor were the allegations contained in appellant’s motion for post-conviction relief presented for our consideration.
We therefore reverse the cause with instructions to conduct a full evidentiary hearing into the allegations contained in the appellant’s motion, determine the issues and make findings of fact and conclusions of law with respect thereto’, in accordance with the views expressed in Austin v. State, Fla.App.1964, 160 So.2d 730; Gammage v. State, Fla.App.1964, 162 So.2d 529; and Smith v. United States, 9th Cir. 1958, 259 F.2d 125.
Reversed and remanded with directions.
SHANNON and HOBSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Kellerman v. State, 287 So. 2d 702 (Fla. 3d DCA 1973)…ns to conduct a full evidentiary hearing into the allegations contained in defendant-appellant’s motion, determine the issues and make the appropriate findings of fact and conclusions of law with respect thereto. See Rayburn v. State, Fla.App. 1967, 203 So. 2d 212. Reversed and remanded with directions.…
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Estevez v. State, 206 So. 2d 697 (Fla. 2d DCA 1968)…for relief and is not refuted by the record, the trial Judge must order an adversary hearing. We recently held just that in two cases, both released in October, 1967, Tillman v. State, Fla.App.1967, 203 So. 2d 46, and Rayburn v. State, Fla.App.1967, 203 So. 2d 212. In Tillman, we went so far as to hold that— « * * * allegations of the motion, incomprehensible and even fantastic as they may be, showed on their face, if true, a violation of Tillman’s constitutional rights, and called for a response by the Stat…
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Eddy Dutchville v. State, 209 So. 2d 696 (Fla. 2d DCA 1968)…d that the State knowingly used perjured testimony at his trial. Such allegation is not conclusively refuted by the record. Consequently, it was sufficient to have entitled appellant to an evidentiary hearing thereon. Rayburn v. State, Fla.App.1967, 203 So. 2d 212, 213. Accordingly, we reverse the appealed order and remand the cause with instructions to conduct an evidentiary hearing on the aforesaid allegation and to make findings of fact and conclusions of law with respect thereto. Reversed and remanded.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Austin v. State, 160 So. 2d 730 (Fla. 2d DCA 1964)
- Bruce Hinson Gammage and Larry v. Gysin, 162 So. 2d 529 (Fla. 3d DCA 1964)
- Smith v. United States, 259 F.2d 125 (9th Cir. 1958)
- Rayburn v. State, 188 So. 2d 374 (Fla. 2d DCA 1966)