Opinion
No. 75-330.
June 17, 1977.
Appeal from the Circuit Court, Seminole County, J. William Woodson, J.
Emmett A. Moran, Altamonte Springs, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant, Robert J. Presley, seeks reversal of a summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850. His motion alleged that the state knowingly used perjured testimony at the trial. Such allegation is not conclusively refuted by the record. Consequently, it was sufficient to have entitled appellant to an evidentiary hearing thereon. Rayburn v. State, 203 So.2d 212 (Fla.2d DCA 1967); Dutchville v. State, 209 So.2d 696 (Fla.2d DCA 1968).
Accordingly, we reverse the appealed order and remand the cause with instructions to conduct an evidentiary hearing on the aforesaid allegation and to make findings of fact and conclusions of law with respect thereto.
Reversed and remanded, with instructions.
CROSS, ANSTEAD and DAUKSCH, JJ., concur.