JAMES CALVIN BARBER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Calvin Barber challenged his conviction based on post-trial admissions by two key witnesses that their trial testimony was false. The court affirmed the denial of his motion to vacate, holding that relief for perjured testimony requires proof that the prosecution knew of the falsity at trial.
A defendant cannot obtain relief for perjured testimony absent a showing that the prosecuting official knew at the time the trial testimony was used that it was untrue. The court affirmed the denial of Barber's motion because he failed to allege or prove the prosecutor's knowledge of the alleged perjury.
[1] A motion to vacate a judgment and sentence based on perjured testimony requires an allegation that the prosecutor knew the testimony was perjured at the time it was prese…
[2] A writ of error coram nobis will not issue based on false trial testimony absent a showing that the false testimony was induced by, or known to, a prosecuting officer.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“no evidence was submitted to show that the prosecuting official knew at the time the trial testimony was used that it was untrue, if it was in fact untrue, and hence appellant was not entitled to the relief sought”
Establishes the requirement that prosecutorial knowledge of perjury is necessary for relief
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBarber was convicted based solely on testimony from two witnesses. After trial, both witnesses made extrajudicial statements admitting their trial tes…
The full statement of facts, procedural history, and disposition for this case are member content.
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Appellant filed a motion to vacate judgment and sentence, alleging as the basis thereof that his conviction was supported solely by the testimony of two witnesses, each of whom had made post-trial extrajudicial statements admitting that their trial testimony was not true. The appeal is from the order denying the motion.
Initially, it should be noted that while the motion alleged the use of perjured testimony, it failed to allege that the prosecutor knew the testimony was perjured at the time it was presented in court. While this omission would have justified the trial court in denying appellant an evidentiary hearing on the motion, Stringer v. State, Fla.App.1971, 246 So.2d 136, nonetheless, the trial court did grant appellant a hearing at which appellant was present with counsel and presented evidence in support of his motion. In the order denying the motion the court stated that it would be unnecessary for it to determine which of the witnesses should be believed because no evidence was submitted to show that the prosecuting official knew at the time the trial testimony was used that it was untrue, if it was in fact untrue, and hence appellant was not entitled to the relief sought under the principle announced in the cases of Cash v. State, Fla.App.1968, 207 So.2d 18, and Wade v. State, Fla.App.1967, 193 So.2d 459.
Appellant earnestly contends that the Wade and Cash cases are distinguishable, the one because the conviction was 18 years prior and the other because the court found factually that there had been no perjured testimony. Such factual differences do not alter the well established legal principle announced in these two cases as well as in others such as Smith v. State, Fla.App.1966, 191 So.2d 618 and Harris v. State, Fla.App.1964, 167 So.2d 312.
This is no recent innovation or development in the law. Considering that the motion to vacate now affords substantially the same means of collateral attack on a judgment as was historically available under *582writ of error coram nobis, Tolar v. State, Fla.App.1967, 196 So.2d 1, we find a long line of cases squarely holding that the writ would not issue on the ground that a witness had testified falsely at trial regarding a material issue absent a showing that such false testimony was induced by, or at the time known to, one of the prosecuting officers. 7 Fla.Jur., Coram Nobis, § 15. The reasoning behind such is explained in Skipper v. State, 1937, 127 Fla. 553, 173 So. 692.
The order is affirmed.
REED, C. J., and CROSS, J., concur.
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Citator
Cited By
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Ashley v. State, 433 So. 2d 1263 (Fla. 1st DCA 1983)…not sufficient to meet the strict requisites for a writ of error coram nobis. Tafero v. State, 406 So. 2d 89 (Fla. 3d DCA 1981). See also Smith v. State, 400 So. 2d 956 (Fla.1981); State v. Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978); Barber v. State, 257 So. 2d 581 (Fla. 4th DCA 1972); Baker v. State, 336 So. 2d 364 (Fla.1976). Petitioner, however, does not rely in this instance solely upon the legal effect of Loggie’s testimony on the jury’s finding of guilt. He also contends that the state’s complicity in n…1 / 2
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State v. Leevy Carlton Mears, Jr., 256 So. 2d 217 (Fla. 3d DCA 1972)…e principle is well-settled in Florida that knowing use of perjured testimony by the prosecution at the time of trial must be shown to warrant relief under Rule 3.850. E. g., Cash v. State, Fla.App.1968, 207 So. 2d 18; Barber v. State, Fla.App.1971, 257 So. 2d 581. For the reasons stated the order appealed is reversed. Reversed.…
Authorities Cited
- Tolar v. State, 196 So. 2d 1 (Fla. 4th DCA 1967)
- Harris v. State, 167 So. 2d 312 (Fla. 3d DCA 1964)
- Smith v. State, 191 So. 2d 618 (Fla. 4th DCA 1966)
- Cash v. State, 207 So. 2d 18 (Fla. 3d DCA 1968)
- Wade v. State, 193 So. 2d 459 (Fla. 4th DCA 1967)
- Skipper v. State, 127 Fla. 553 (Fla. 1937)
- Lucious Stringer v. State, 246 So. 2d 136 (Fla. 4th DCA 1971)