PETER SIMMONS, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court's denial of the motion for relief was proper, but modified the order to be without prejudice.
Appellant was convicted of robbery and sentenced. He later filed a motion for relief alleging due process violations and the knowing use of perjured t…
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The appellant was charged, tried and convicted of robbery, in the criminal court of record of Dade County on September 20, 1966. He was sentenced to confinement in the state penitentiary for a period of six years, less 53 days previously served.
On August 4, 1967, appellant filed a motion for relief in the trial court, under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix. The motion was denied without evidentiary hearing, the order reciting it did not set forth legal grounds for granting a new trial or release of the prisoner and was insufficient in substance. The public defender, appointed to represent the defendant on appeal, took this appeal therefrom.
In the brief of the appellant the grounds of the motion were explained thus: “He alleged that the sentence was imposed upon him contrary to the requirements of the federal constitutional mandates of due process of law, that the testimony at trial was based upon knowing use of perjured testimony by the prosecutor, and that this testimony in fact violated rules of ‘fundamental fairness.’ ”
■ The challenge directed to the sentence was without merit. The contention in the motion with reference to knowing use of perjured testimony amounted to no more than a bare allegation thereof without supporting facts. Reference therein to testimony of a particular witness amounted to a contention that identification testimony given was lacking in credibility. The denial of the motion by the trial court without evidentiary hearing was proper, under ample authority. See Smith v. State, Fla. App.1965, 176 So.2d 383, 384, and cases cited there.
However we modify the trial court’s order to be a denial of the motion without prejudice (Leeds v. State, Fla.App. 1966, 187 So.2d 77), and as thus modified the order appealed from is affirmed.
Modified and affirmed.
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Citator
Cited By
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Bryant v. State, 268 So. 2d 538 (Fla. 3d DCA 1972)…PER CURIAM. Affirmed. Walker v. State, 152 Fla. 455, 13 So. 2d 4; Redditt v. State, Fla.1959, 84 So. 2d 317; Simpson v. State, Fla.App. 1964, 164 So. 2d 224; Falagon v. State, Fla.App.1966, 186 So. 2d 804; Simmons v. State, Fla.App. 1968, 212 So. 2d 658; Peterson v. State, Fla.App.1970, 237 So. 2d 223; Romero v. State, Fla.App.1971, 251 So. 2d 137; State v. Silva, Fla. 1972, 259 So. 2d 153.…
Authorities Cited
- Smith v. State, 176 So. 2d 383 (Fla. 3d DCA 1965)
- Garland Leeds v. State, 187 So. 2d 77 (Fla. 2d DCA 1966)