State v. Matera

266 So. 2d 661
CourtSupreme Court of Florida
DecidedJuly 12, 1972
Docket41925
StatusPublished
Cited by44 cases

This text of 266 So. 2d 661 (State v. Matera) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Matera, 266 So. 2d 661 (Fla. 1972).

Opinion

266 So.2d 661 (1972)

The STATE of Florida, Petitioner,
v.
John MATERA and Gennaro Galtieri, Respondents.

No. 41925.

Supreme Court of Florida.

July 12, 1972.
Rehearing Denied October 9, 1972.

*662 Robert L. Shevin, Atty. Gen. and Arnold R. Ginsberg, Asst. Atty. Gen., for petitioner.

Milton E. Grusmark, Miami Beach, for respondents.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 254 So.2d 843, a decision certified as passing on a question of great public interest, to-wit:

"Whether the credibility of a witness may be attacked collaterally pursuant to Criminal Procedure Rule 3.850."

The facts as stated in the opinion of the District Court are in pertinent part as follows:[1]

"The appellants were found guilty after a jury trial of robbery. Galtieri was sentenced to prison for twenty-five years and Matera was sentenced to prison for life. Appeals were brought by both appellants and the judgments and sentences were affirmed.
"Thereafter a motion for relief pursuant to CrPR 1.850 was brought on behalf of both appellants seeking relief upon several grounds. This motion was with the court's permission amended and supplemented. The trial judge entered an order for evidentiary hearing. Later upon a review of the entire record, after the filing of a supplemental affidavit, the trial judge entered the order appealed which rescinded the order for evidentiary hearing and denied the motion as supplemented without evidentiary hearing.
"Our review of the record convinces us that there is only one ground in the motion and amended motions which is not either refuted by the record or foreclosed by the appeal from the judgment. The appellants allege that at their trial the state used the testimony of one Bruce Braverman, and that during the trial it was revealed that Braverman had, on more than one occasion, testified before a New York State Grand Jury. It was further alleged that the state knew of grand jury testimony which would have impeached the testimony of Braverman at the trial.
"A withholding by the state of knowledge of evidence known to be useful to the defendant, even though useful only for impeachment purposes, can be grounds for a new trial. See Pitts v. State, Fla. 1971, 247 So.2d 53; State v. Pitts, Fla. App. 1971, 249 So.2d 47."

The Florida rule in question, Rule number 3.850, 33 F.S.A., was adopted from, and is essentially verbatim, § 2255 of Title 28 of the U.S.Code, in effect since June *663 25, 1948. The Reviser's Note following § 2255 states:

"This section restates, clarifies and amplifies the procedure in the nature of the ancient writ of error coram nobis. It provides an expeditious remedy for correcting erroneous sentences without resort to habeas corpus."[2]

Our rule, like its federal counterpart, does not create new substantive rights. Its purpose is to afford an efficient procedure for post-conviction relief "on any grounds which subject them [convictions] to collateral attack."[3] No new grounds for post-conviction relief were created by the rule. Thus, in Birtch v. United States, the United States Circuit Court of Appeal, Fourth Circuit, stated:[4]

"Relief under 28 U.S.C.A. § 2255 may be granted only where it appears `that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.' It should be borne in mind that the purpose of the section was not to enlarge the class of attacks which may be made upon a judgment of conviction, but to provide that the attack must be made in the court where the sentence was imposed and not in some other court through resort to habeas corpus, unless it appears that the remedy by motion is inadequate." (e.s.)

This Court in Austin v. State,[5] quoted with approval from the Birtch case and stated:

"It is therefore clear that Section 2255 is not intended to broaden the class of attacks which may be made upon a judgment of conviction or sentence; rather, the attack through motion to vacate must be made under the conditions specified."

In the Austin case, this Court went on to hold:[6]

"As to appellant's contention of false swearing or use of perjured testimony, a reading of this portion of the motion shows it to constitute an attempt to argue the credibility of testimony given by certain state witnesses and claimed conflicts in that testimony. Additionally, in order to have a sentence set aside on the ground that perjured testimony was used, it is necessary for the motion to show that the testimony was perjured and that the prosecuting officials, at the time of its use, knew it was perjured.

Credibility of a witness, as such, like sufficiency of the evidence, has not been recognized as a ground supporting collateral attack on a conviction. Even a petition alleging perjury of a witness at trial is insufficient unless it is also alleged that the perjured testimony formed the basis of the conviction, was knowingly used by the prosecution and was unknown to defendant at the time of trial or during appeal.[7] The somewhat related ground of *664 knowing suppression of evidence by the State must also be accompanied by allegations that the evidence suppressed was essential to the conviction and that defendant was unaware of its existence or unable to obtain its disclosure.[8] Similarity between the foregoing requirements for post-conviction relief under modern rules with the requirements of the ancient writ of coram nobis are apparent.[9]

The amended motion to vacate, filed April 22, 1970, contains the following allegations pertinent to the question certified:

"Testimony was given by one Bruce Braverman who at the time was incarcerated in the State of New York. Utilization of Grand Jury testimony for cross-examination of Braverman revealed that other Grand Jury testimony had been given by Braverman which was not available to the Defendants or their attorneys at trial. It has just been revealed to counsel for Defendants that prior New York Grand Jury testimony of Braverman completely impeached the statements presented to the jury in this Court. The Defendants were not aware of the substance of the prior Grand Jury testimony in New York. The State, however, was aware of that testimony. The State of Florida, through its close association with the New York authorities, knew or should have known that contradictory testimony had been given and would have exculpated the Defendants."

The trial court, in its order of July 6, 1970, denying the motion to vacate without evidentiary hearing, points out that the defendants admittedly knew at the time of trial that Bruce Braverman had given testimony more than once to a Grand Jury in New York and that Braverman was called as a court witness and both sides were given ample opportunity to cross-examine him.

The record reveals that Braverman, called as a court's witness, was questioned by the Judge initially and impeached by both sides. Braverman stated that he was a convicted felon and had known the defendant for approximately sixteen months.

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Bluebook (online)
266 So. 2d 661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-matera-fla-1972.