Florida/Georgia Personal Injury & Workers Compensation

...We note first that the recanting witnesses were not convicted of perjuring themselves before the grand jury. They were convicted of perjury by contradictory statements before the grand and petit juries, for which it is "not necessary to prove which, if any, of the statements, is not true." § 837.021(3), Fla....

...The trial court, however, did not find that these statements constituted fraud or perjury. Even if they were false, they may not have been material. The crime of perjury by contradictory statements has, as an element, that the statements must be material. § 837.021(1), Fla....

...the sole inculpating testimony does not require the issuance of a writ of coram nobis. We observe that this concern about the trustworthiness of post-trial recantation is less justified than once it might have been in light of the passage in 1972 of Section 837.021, Florida Statutes....

...In the trial of the charge of perjury in a prior judicial proceeding, the question as to whether the defendant's sworn statement in the prior judicial proceeding was material to some issue in the prior proceeding is a question of law for the court. See § 837.021(2), Fla....

...Florida RCrP 3.190(c)(4) provides for dismissal of an information upon defendant's motion when there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. Perjury by contradictory statements, as set forth by Section 837.021, Florida Statutes 1975, consists of two or more material statements being wilfully made under oath during one or more official proceedings which, in fact, contradict each other....

...The Court has considered the pleadings, the exhibits and argument of respective *1257 counsel. The defense contends that defendant recanted his false or erroneous testimony and therefore a perjury prosecution cannot be sustained under Brannen, supra. The State counters that Sherman, supra, and section 837.021(1), Florida Statutes, have effectively abolished the defense of recantation recognized in the Brannen case....

..."The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony." Brannen, 114 So. p. 431. As to the State's contention that section 837.021(1), has effectively abolished the defense of recantation, the Court feels otherwise where full recantation is forthcoming in the same proceeding before final submission....

...This inducement would be destroyed if a witness could not correct a false statement except by running the risk of being indicted and convicted of perjury." Brannen, 114 So. p. 431. This Court cannot find, and does not believe, the Legislature by enacting section 837.021(1) ever intended to preclude a search for the truth in the judicial process. In reaching this conclusion, the Court has not overlooked Brown v. State [334 So.2d 597] wherein a closely divided Supreme Court upheld the constitutionality of section 837.021(1)....

...Under these circumstances the fear of being caught should not vitiate the defense of recantation. We adopt the order of the trial judge and the dissenting opinion of Judge Cross [5] as being correct in this cause. In doing so, we specifically hold that section 837.021(1), Florida Statutes, has not abolished the defense of recantation....

...Feagle's inconsistent June and December statements are at the heart of the instant controversy. The four-count second amended information charged that between June 22, 1989, and December 1, 1989, Feagle committed perjury by inconsistent statements (Count I), in violation of section 837.021(1), Florida Statutes (1989), and served as accessory after the fact (Counts II through IV), in violation of section 777.03, Florida Statutes (1989)....

...h traverses. Paragraph 2 of the "Facts" section of Feagle's Second Motion to Dismiss Count I alleges "Defendant believed each statement he made on June 22, 1989, and on December 1, 1989, to be true at the time he made it pursuant to Florida Statutes 837.021(4)." That statute provides that in a prosecution for perjury by contradictory statements, "it shall be a defense that the accused believed each statement to be true at the time he made it." In its responsive traverse, the state specifically d...

...Those are questions of ultimate fact for the jury and cannot be decided on a motion to dismiss. See State v. Farrugia, 419 So.2d 1118 (Fla. 1st DCA 1982); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980) (state's traverse denying or disputing material factual allegations required denial of motion to dismiss). Section 837.021(3), Florida Statutes (1989), provides that "[i]n any prosecution for perjury by inconsistent statements under this section, it is not necessary to prove which, if any, of the statements is not true." Based on that statute, the state argued that whether one or the other of appellee's statements is true or false is immaterial and need not be proved. Feagle's belief or intent concerning the contradictory statements is relevant and material, however, because section 837.021(1), Florida Statutes (1989), makes willfulness an element of the crime....

...Parrish, 567 So.2d 461, 464-65 (Fla. 1st DCA 1990), rev. den., 581 So.2d 167 (Fla. 1991). Because the record before the trial court did not show conclusively that the state could not prove Feagle 1) willfully made contradictory statements in violation of section 837.021, Florida Statutes (1989), and 2) failed to recant, disputes of material fact existed when the court ruled on the motions to dismiss....

...less of its admissibility under the rules of evidence, which could affect the course or outcome of the proceeding. Whether a matter is material in a given factual situation is a question of law. § 837.011(3), Fla. Stat. (1993) (emphasis added). Cf. § 837.021(2), Fla....

...ory statements and otherwise hiding the truth.” The court also found that Appellants’ contradictory statements “rise[ ] to the level of perjury in official proceedings (Section 837.02, Florida Statutes) and perjury by contradictory statements (Section 837.021, Florida Statutes).” Finding that Appellants had perpetrated a fraud upon the court, the court dismissed the second amended complaint with prejudice....

...Supreme Court of Florida. May 5, 1976. John L. Parker, Jr., West Palm Beach, for appellant. Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee. *598 SUNDBERG, Justice. This is an appeal from an adjudication of guilt under Section 837.021, Florida Statutes [1] (perjury by inconsistent statement), in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida....

..., also known to Claude Brown III as `Little Junior' on September 18, 1973". Later at trial appellant denied under oath that he was with Leonard Joseph on that date. This variance in Brown's story led to his subsequent indictment and conviction under Section 837.021, Florida Statutes....

...The State is never required to prove the falsity of a specific remark as it must under both the common law and the other perjury statutes of this jurisdiction, [2] but is able to gain a conviction by piling inference upon inference. Although under Section 837.021(4), Florida Statutes, the good faith belief that both of the defendant's remarks were accurate at the time made is provided as a defense, appellant argues that a defendant must, in order to avail himself of the protection of this provision, take the stand to assert his bona fides. While the constitutionality of Section 837.021, Florida Statutes, has not been the subject of a reported opinion in this State, there is impressive authority for the proposition that such statutes are constitutional as establishing a reasonable, rebuttable presumption that a crime has been committed....

...as where he is charged with falsely stating he did not remember certain facts, evidence of contradictory statements made may be sufficient to establish his guilt." It is asserted that the term "inconsistent statements" appearing in subsection (1) of 837.021, Florida Statutes, is susceptible of ambiguity, that there are gradations of consistency....

...r regimes. A structure so founded cannot withstand the erosion caused by willful falseswearing. Realizing this cardinal fact of American jurisprudence, our Legislature has changed the common law requirement of proof of specific falsehood by enacting Section 837.021, Florida Statutes....

...In my opinion, the statute is unconstitutional. It would prevent a witness from ever correcting a prior false statement without the hazard of being indicted for perjury. I think the witness should be encouraged not discouraged to make a corrective statement. Section 837.021, Florida Statutes, constitutes an unconstitutional violation of the Fifth Amendment to the Constitution of the United States....

...The statute did not equivocate. It relieved the State of the burden of proving willfulness, an explicit element of the offense, by making its absence a matter of "defense", i.e., "that the accused believed each statement to be true at the time he made it." Sec. 837.021(4), F.S....

...Lillis, 3 A.D.2d 44, 158 N.Y.S.2d 191 (1956). Our statute was broadly concerned with material statements made under oath in "trials, hearings, investigations, depositions, or affidavits, in which the making of statements under oath or affirmation is required or authorized by law." Sec. 837.021(1), F.S....

..., because they were so restricted, were upheld in People v. Ricker, 45 Ill.2d 562, 262 N.E.2d 456 (1970), and People v. Lillis, supra. The presumption of willfulness, in its classic sense of volition and intent informed by knowledge, was attached by § 837.021 to all inconsistent statements made in any setting in which an oath was thought by an investigator or interrogator to be desirable or convenient....

...ully lied than to have been mistaken or confused. United States v. Romano, supra, 382 U.S. at 139, 86 S.Ct. at 281, 15 L.Ed.2d at 213. Finding in our common experience no justification for such a melancholy view, I would hold that the presumption of § 837.021, F.S....

...which, if any, of the statements is not true. "(4) In any prosecution under this act for perjury by contradictory statements, it shall be a defense that the accused believed each statement to be true at the time he made it." Effective July 1, 1975, Section 837.021(1), Florida Statutes, was changed to read as follows: "Whoever, in one or more official proceedings, willfully makes two or more material statements under oath when in fact two or more of the statements contradict each other is guilty of a felony of the third degree, punishable as provided in chapter 775....

...y by the process of his court or who may voluntarily appear before him to testify as to any violation or violations of the criminal law." [5] Mitchell was convicted of perjury by contradictory sworn statements in official proceedings in violation of Section 837.021, Florida Statutes (1977)....

...Thereafter, in a deposition taken by the public defender, the appellant made certain statements which contradicted statements previously made to the police officers. As a consequence, she was charged with and convicted of perjury by making contradictory statements under oath in an official proceeding, in violation of section 837.021, Florida Statutes....

...NOTES [1] Ferris was initially placed on probation for a three-year period and adjudication was withheld. After the terms of the initial probation were revoked, appellant was adjudicated guilty, and an additional seven years was tacked onto his probationary term. [2] § 837.021, Fla....

...orney for Dade County. These grants purport to immunize *32 Doe and Roe from criminal prosecution for prior perjury or for the use of their prior testimony in any subsequent criminal proceedings for perjury by inconsistent statements in violation of section 837.021, Florida Statutes (1977)....

...s right against self-incrimination and refuse to testify. Doe and Roe refused to testify because of their expressed concern that in the event any testimony given by them proved to be inconsistent with any earlier testimony, the criminal sanctions of section 837.021, would be invoked and disciplinary sanctions of the Bar would be imposed....

...ent right against self-incrimination where their testimony would incriminate them by exposing them to Bar disciplinary action. They state that they may make an inadvertent inconsistent statement which would subject them to criminal prosecution under section 837.021 and to Bar discipline....

...hat the original granting of immunity to Doe and Roe from criminal prosecution and Bar discipline encompassed the prohibition of using any of the statements previously made by them under oath in 1974 and 1975 as a basis for prosecution of them under section 837.021 or as a basis for Bar discipline for perjury by later contradictory statements....

...In fact, she testified that her affidavit was not an attempt to withdraw from or recant the earlier sworn statement. Ms. Adams was accordingly properly convicted of perjury by contradictory statement. JUDGMENT AND SENTENCE AFFIRMED. DAUKSCH and GOSHORN, JJ., concur. NOTES [1] § 837.021, Fla....

...x-husband, a friend and herself in the arson. *211 Prior to her ex-husband's trial on the ensuing charges, she gave a sworn deposition to the defense attorney which conflicted with her previous testimony. The state charged Fowler with a violation of section 837.021, Florida Statute (1981), perjury by contradictory statements....

...uestion of great public importance: WHETHER THE FLORIDA BAR V. DOE, 384 So.2d 30 (Fla. 1980), BARS THE STATE FROM USING STATEMENTS MADE BY THE DEFENDANT UNDER A GRANT OF IMMUNITY IN PROSECUTION (a) FOR PERJURY BY LATER CONTRADICTORY STATEMENTS UNDER SECTION 837.021; AND (b) FOR PERJURY UNDER SECTION 837.02? 447 So.2d at 298....

...As the district court below correctly noted, this case is controlled by our decision in The Florida Bar v. Doe, 384 So.2d 30 (Fla. 1980), which held that a grant of immunity prohibits the use of those immunized statements in subsequent prosecution under section 837.021....

...The State of Florida challenges a trial court order dismissing three perjury charges filed against the appellee, Robert J. Barbuto. We reverse. The state filed an information charging the appellee with one count of perjury by inconsistent statements in violation of section 837.021, Florida Statutes (1987), and two counts of perjury in an official proceeding in violation of section 837.02, Florida Statutes (1987)....

...2d DCA 1987). We agree with the state's contention that the statements referred to in the information were material. The question of the materiality of a statement in a perjury case is generally a question of law. Rader v. State, 52 So.2d 105 (Fla. 1951); § 837.021, Fla....

...with and obtained a conviction for perjury based on her statements connected to the domestic battery incident and at the subsequent violation of probation hearing. It is unclear from the record before us whether she was prosecuted for a violation of section 837.021, Florida Statutes (2008), felony perjury by contradictory statements; section 837.012, Florida Statutes, misdemeanor perjury when not in an official proceeding; or section 837.05, Florida Statutes, misdemeanor false reports to law enforcement authorities....

...t to police and admitting she had lied to the police. The investigator was also the affiant to the alleged victim’s probable cause affidavit on which her arrest warrant was based. The investigator claimed the victim was charged with a violation of section 837.021, perjury by contradictory statements, which he claimed was a misdemeanor, but appellant pointed out at the hearing that she was charged with a violation of section 837.012, perjury not in an official proceeding, which he believed referred to the statement to police....

...2 The court rejected any argument that the State knowingly used perjured testimony and opined that the probable cause affidavit against the victim includes a typographical error, that instead of citing section 837.012, for perjury not in an official proceeding, it should be section 837.021, for perjury by contradictory statements....

...that they should not be compelled to provide testimony because their compelled testimony would likely be inconsistent with their earlier sworn statements, thereby, exposing them to prosecution for perjury by contradictory statements in violation of section 837.021, Florida Statutes (2008)....

...statements under oath. 3 This concern is unfounded, provided that their compelled testimony is truthful. Section 914.04 generally prohibits the use of such testimony in any criminal investigation or proceeding against the witness. More specifically, section 837.021(4), provides that a person may not be prosecuted for making contradictory statements if the contradictory statement made in the most recent proceeding was made under a grant of immunity under section 914.04....

...Gallay, Asst. Atty. Gen., Tampa, for appellant. Robert M. Focht, New Port Richey, for appellee. PER CURIAM. The trial court granted Sandra Newsome's motion to dismiss an information charging her with perjury by contradictory statements in violation of Section 837.021, Florida Statutes (1975)....

PER CURIAM. The State appeals an order dismissing an information which charges the giving of contradictory statements under oath in violation of Section 837.021, F.S.A....

CAMPBELL, Judge. Appellant appeals the trial court’s denial of his motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We reverse. Appellant was charged with perjury by contradictory statements, a violation of section 837.021, Florida Statutes (1983)....

...should be aware of the fact that the oath is in effect at the time the statement is given. Assuming, for the purposes of this case, however, that both statements of appellant were under oath, we pass to the broader issue of whether prosecution under section 837.021 is proper where the contradictory statements are made to a sheriff’s deputy during a criminal investigation *523 when the deputy also happens to be a notary public....

...Since Schramm’s statements were not made during an official proceeding, his conviction for violation of Section 837.02, Florida Statutes (1977) is reversed. (Footnotes omitted.) Moreover, prior to its amendment by the enactment of chapter 74-383, Laws of Florida (1974), section 837.021, prohibiting perjury by contradicting statements, read quite differently than it does since the amendment. Prior to the 1974 amendment, section 837.021 prohibited perjury by contradictory statements when made “in one or more trials, hearings, investigations, depositions or affidavits.” (Emphasis added.) Sections 53 and 56 of chapter 74-383 amended section 837.021 to prohibit contradictory statements when made “in one or more official proceedings” and added section 837.011(1), which defined “official proceeding” as: “Official proceeding” means a proceeding heard, or which may be or...

...State, 466 So.2d 210, 211 (Fla.1985) holds: As the district court below correctly noted, this case is controlled by our decision in The Florida Bar v. Doe, 384 So.2d 30 (Fla.1980), which held that a grant of immunity prohibits the use of those immunized statements in subsequent prosecution under section 837.021....

contradictory statements pursuant to Fla.Stat. § 837.021 (1973). The information charged that appellant

...Here, however, the witness had testified for both the state and the appellant. She gave conflicting testimony and stated that she had lied the first time she testified. Thus, she was amenable to a charge of perjury by contradictory statements under Section 837.021, Florida Statutes (1975), regardless of which of her statements was true....

...McCollum, 558 U.S. 30 (2009), retroactively to his claims violates his constitutional rights to due process and equal protection; (C) newly discovered evidence that a trial witness recanted her testimony requires that Duckett be granted a new trial; and (D) section 837.021, Florida Statutes (1997), relating to perjury by contradictory statement, is invalid. For the reasons explained below, we affirm the circuit court’s summary denial of relief of Duckett’s successive postconviction motion. A....

...Accordingly, we affirm the postconviction court’s summary denial of relief on this successive claim. D. Validity of Perjury Statute - 15 -  In his final claim, Duckett contends that section 837.021, Florida Statutes (1997), which proscribes perjury by contradictory statement, is invalid....

...evidentiary hearing on Duckett’s initial postconviction motion. See Duckett II, 918 So. 2d at 232. Duckett argues that the fear of a felony perjury conviction caused Gurley to invoke the privilege, which in turn violated his right to due process. Therefore, he argues that section 837.021 is invalid....

...She argues that the trial court’s reason for departing from the sentencing guidelines is invalid. We agree and reverse. On May 16, 1990, the appellant was charged in count I with perjury in violation of section 837.02, Florida Statutes (1989), and in count II with perjury by contradictory statements in violation of section 837.021, Florida Statutes (1989)....

GRIMES, Acting Chief Judge. This is an appeal from a conviction of perjury by contradictory statements under Section 837.021, Florida Statutes (1977)....

...Magin, 280 F.2d 74 (7th Cir. 1960); Commonwealth v. Billingsley, 357 Pa. 378 , 54 A.2d 705 (1947); 70 C.J.S. Perjury § 70, p. 539. In order to convict of perjury by inconsistent statements there was no need to prove that either of the two statements was false. Section 837.021(3), Florida Statutes (1977); Brown v....

...- 13 - whether there was a reasonable and good faith basis for invoking the privilege: If the witnesses’ testimony at the evidentiary hearing was false, then that would subject the witness to a charge of perjury by contradiction. § 837.021, Fla....

that he would be subject to prosecution under Section 837.021, Florida Statutes,3 Feldman refused to testify

...After a hearing on the motion, the trial court dismissed these counts. Section 887.02, Florida Statutes, defines perjury in an official proceeding as “whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter.” Similarly, section 837.021, Florida Statutes, defines perjury by contradictory statements as “whoever, in one or more official proceedings, willfully makes two or more material statements under oath which contradict each other.” Section 837.011(3), Florida...

...She then gave a second and allegedly different account of the arson, which conflicted with her previous testimony concerning her ex-husband’s knowledge of the arson. The state then charged Fowler with perjury by contradictory statements in violation of section 837.021, Florida Statutes (1981)....

...ed forward and protected her from having her prior statements used against her to show inconsistency with her testimony at the deposition. The Florida Bar v. Doe. The Doe case mandates dismissal of the information charging Fowler with a violation of section 837.021....

...We certify to the supreme court the following question as being one of great public importance: *298 WHETHER THE FLORIDA BAR v. DOE, 384 So.2d 30 (Fla.1980), BARS THE STATE FROM USING STATEMENTS MADE BY THE DEFENDANT UNDER A GRANT OF IMMUNITY IN PROSECUTION (a) FOR PERJURY BY LATER CONTRADICTORY STATEMENTS UNDER SECTION 837.021; AND (b) FOR PERJURY UNDER SECTION 837.02? REVERSED AND QUESTION CERTIFIED....

...with.” 3 Neither gave any credibility to Ms. Nieves’s recantation. 2 Despite the officer’s intention, Nieves could not have been convicted of perjury by contradictory statements as it requires that both statements be made in one or more official proceedings. See § 837.021(1), Fla....

immunity statutes. See § 914.04, Fla.Stat. (1993); § 837.021, Fla.Stat. (1993). *1065Accordingly, we affirm