Opinion
No. 66-450.
February 13, 1968.
Appeal from the Criminal Court, Dade County, Jack M. Turner, J.
Robert L. Koeppel, Public Defender and Marvin J. Emory, Jr., Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., for appellee.
Before CHARLES CARROLL, C.J., and BARKDULL and HENDRY, JJ.
This appeal seeks review of an adverse order in a proceeding under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. The thrust of the amended petition collaterally attacking the verdict, judgment and sentence under review, is alleged perjury by a police officer which was known by the prosecuting officials. We find no error and affirm.
This procedure partakes of a civil remedy. State v. Weeks, Fla. 1964, 166 So.2d 892; Barton v. State, Fla.App. 1965, 176 So.2d 597; Whitney v. State, Fla.App. 1966, 184 So.2d 207; Bryant v. State, Fla.App. 1967, 204 So.2d 9. It is incumbent upon the appellant to make error appear. Coleman v. State, Fla.App. 1967, 193 So.2d 699; Plymale v. State, Fla.App. 1967, 201 So.2d 85; Bryant v. State, supra. Unless there is no substantial evidence to support his conclusions, the trial judge will be affirmed. Swarthout v. State, Fla.App. 1964, 165 So.2d 773; Carroll v. State, Fla. App. 1966, 186 So.2d 834. The trial judge failed to find that perjured testimony was involved. A review of the record reveals that this conclusion is amply supported. Hall v. State, 136 Fla. 644, 187 So. 392; Gordon v. State, Fla. 1958, 104 So.2d 524; Duval v. State, Fla.App. 1958, 104 So.2d 789. Further, it is apparent that the prosecuting officials, even if perjury had existed [which was not shown] were not aware of such and, therefore, the appellant would not be entitled to the relief sought. Harris v. State, Fla.App. 1964, 167 So.2d 312; Smith v. State, Fla.App. 1966, 191 So.2d 618; Wade v. State, Fla.App. 1967, 193 So.2d 459.
For the above stated reasons, the verdict, judgment and sentence here under review is hereby affirmed.
Affirmed.