Brown v. State

163 So. 2d 335 (1964)

Gerald "Pops" BROWN, Appellant,
v.
STATE of Florida, Appellee.

Nos. 63-818, 63-919.

District Court of Appeal of Florida. Third District.

April 28, 1964.

Robert L. Koeppel, Public Defender, and W. Eugene Neill, Asst. Public Defender, for appellant.

James W. Kynes, Jr., Atty. Gen., and Victor V. Andreevsky, Asst. Atty. Gen., for appellee.

Before BARKDULL, C.J., and CARROLL and TILLMAN PEARSON, JJ.

BARKDULL, Chief Judge.

The above-numbered appeals both question the correctness of the trial court's order in denying a petition seeking relief under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix.

The appellant, as petitioner, filed a lengthy petition containing many grounds, all of which we find to be without merit save and except the 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 trial judge denied the petition without a formal hearing, and we reverse and remand to the trial court to consider the petition further, on the sole ground of the alleged use of perjured testimony while same was known by the State to be such, in accordance with the views expressed in the following: Austin v. State, Fla.App. 1964, 160 So. 2d 730; Gammage v. State, Fla.App. 1964, 162 So. 2d 529, (opinion filed March 17, 1964); Smith v. United States, 9th Cir.1958, 259 F.2d 125.

Reversed and remanded with directions.