Horton v. State

MANN, Chief Judge.

Horton appeals from denial without evidentiary hearing of his petition for post-conviction relief. He relies on an affidavit of Kenneth Stringer, in which Stringer states that he was the one who had sexual relations with the victim for whose rape Horton was said to have been convicted. Stringer’s affidavit also refers to his “partner” who was present, but does not identify that partner. Thus the most that can be said for the affidavit is that it asserts Stringer’s guilt, not Horton’s innocence, although Stringer would assert that he was innocent of rape because the act, though there had been prior threats, was accomplished “without displaying the pistol or using any force whatsoever to harm her.” If the partner was Horton, he would still be guilty as a principal for having aided and abetted the crime. State v. Roby, Fla. 1971, 246 So.2d 566.

Oral argument is dispensed with pursuant to Rule 3.10(e), F.A.R., 32 F.S.A., and the order denying the petition is

Affirmed.

MANN, C. J., and McNULTY and BOARDMAN, JJ., concur.