Rayburn v. State

District Court of Appeal of Florida

Rayburn v. State

203 So. 2d 212, 1967 Fla. App. LEXIS 4437

CourtDistrict Court of Appeal of Florida

DecidedOctober 20, 1967

DocketNo. 7501

StatusPublished

Cited by8 cases

This text of 203 So. 2d 212 (Rayburn v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rayburn v. State, 203 So. 2d 212, 1967 Fla. App. LEXIS 4437 (Fla. Ct. App. 1967).

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Opinion

ALLEN, Acting Chief Judge.

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.

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ALLEN, Acting Chief Judge.

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.

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203 So. 2d 212, 1967 Fla. App. LEXIS 4437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rayburn-v-state-fladistctapp-1967.

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