Wade v. State

• Decision Date: 06 January 1967
• Docket Number: No. 931,931
• Citation: Wade v. State, 193 So.2d 459 (Fla. App. 1967)
• Court: Florida District Court of Appeals
• Parties: Cecil WADE, Appellant, v. STATE of Florida, Appellee.

Page 459

193 So.2d 459

Cecil WADE, Appellant, v.STATE of Florida, Appellee.

No. 931.

District Court of Appeal of Florida, Fourth District.

Jan. 6, 1967.

Cecil Wade, in pro. per.

Earl Faircloth, Atty. Gen., Tallahassee, and James T. Carlisle, Asst. Atty. Gen., Vero Beach, for appellee.

PER CURIAM.

The petitioner, Cecil Wade, appeals an order denying post-conviction relief under Criminal Procedure Rule One, F.S.A. ch. 924 Appendix.

The petitioner submitted an affidavit by a co-defendant, one Cecil Messer, which in effect confessed to the crime and stated that the petitioner here, Cecil Wade, was an innocent bystander and had no part in the commission of the crime.It is alleged that at the original trial Messer implicated the petitioner as a co-perpetrator of the crime.By this means an attempt is made to establish that Messer committed perjury as a result of which the petitioner was convicted.

Perjury of a witness at a criminal trial does not form the basis of post-conviction relief under Criminal Procedure Rule One unless the prosecuting attorney knew at the time said testimony was used that it was untrue.Smith v. State, Fla.App.1966, 191 So.2d 618.

There must be a termination of the right to post-conviction review after the courts have had an opportunity to consider all...