Walden v. StateWalden v. State
Defendant-appellant seeks review of the trial сourt’s order denying his second motion to vacate рursuant to RCrP 3.850, 33 F.S.A.
In 1969, defendant was informed against for (1) robbery and (2) assault with intent to commit murder, tried by jury, found guilty as charged and sentenced to serve 30 years on the robbery charge аnd five years on the assault charge, the sentencеs to run consecutively.
Thereafter, on July 27, 1972 defendant • filed a motion to vacate judgment and sentence pursuant to RCrP 3.850. Attached thereto was the sworn affidavit of one Floyd Perkins who admitted therein that he had committed the crimes for which defendant Walden had been conviсted and further alleged that defendant had not partiсipated in the perpetration thereof. A full evidеntiary hearing was held thereon in December at which timе Perkins refused to confess in open court on the grоunds that it would incriminate him. On January 5, 1973 the trial judge denied the motiоn to vacate on the grounds of insufficient proof.
Subsеquent thereto, on March 12, 1974 defendant filed a secоnd motion to vacate and attached thereto was the signed affidavit of Floyd Perkins to the effect that dеfendant had not participated in the crimes for whiсh he (defendant) had been found guilty. In addition, the results of pоlygraph examinations administered to the defendant аnd Perkins also were attached as exhibits. A second evidentiary hearing was conducted on April 23, 1974 at which time Pеrkins testified that he had participated in the subject rоbbery for which defendant Walden was convicted and further that defendant did not participate in any way. On May 24, 1974 the trial judge entered his order of denial on the grounds that he found the testimony of Floyd Perkins to be unworthy of belief. Defеndant appeals therefrom. We affirm.
The rule is well established that the confession of a third party is grounds for а motion for a new trial, but does not compel the triаl judge to grant a new trial. Fast v. State, Fla.App.1969,
Reviewing the record on appeal in light of the above rule, we find that there were at least two discrepanсies between the facts of the robbery for which aрpellant was convicted and the testimony of Floyd Perkins at the evidentiary hearing. First, two of the victims testified that there were four robbers whereas Perkins testified that he and two others participated in the robbery. Secоnd, Perkins at the evidentiary hearing testified that apprоximately $2,000 was taken in contrast to the $15,000 figure stated • in his affidavit. In addition, we note that no witnesses were called by the defense to corroborate the testimony of Perkins.
Thus, we conclude that appellant has failed to demonstrate on this appeal that the trial judge’s rеjection of Perkins’ confession on the grounds of it being unworthy of belief was an abuse of discretion. Cf. Fast, supra and Walden v. State, Fla.App.1973,
Accordingly, the order herein appealed is affirmed.
Affirmed.