203 So. 2d 212 | Fla. Dist. Ct. App. | 1967
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.