STATE v. CARTER

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Docket Number

No. 77-2438.

Attorney(S)

Robert L. Shevin, Atty. Gen., Tallahassee, and Barry Krischer, Asst. State's Atty., West Palm Beach, for appellant. David Roth and Michael A. Nugent of Cone, Owen, Wagner, Nugent, Johnson McKeown, P.A., West Palm Beach, for appellee.

Judges

MOORE, Judge.
CROSS, Judge, dissenting:

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Smart Summary

Factual and Procedural Background

Appellee T.R. Carter, a chiropractic physician, was charged with perjury under Section 837.02(1), Florida Statutes (1977), based on deposition testimony given in a civil trial involving a personal injury claim by Carrie Brunson. Brunson alleged injuries from a June 20, 1975 automobile accident and was treated by Carter. During discovery, Carter testified under oath that he had not seen Brunson prior to the accident. Later, after defense counsel suggested otherwise, Carter reviewed his records and sent a letter with medical information showing 79 prior visits by Brunson before the accident. The State charged Carter with perjury based on the initial false testimony. The trial court granted Carter’s motion to dismiss the perjury information, relying on the recantation doctrine. The State appealed that dismissal.

Legal Issues Presented

Whether the trial court erred in dismissing the perjury charge on the basis that the defendant recanted the alleged false statement.
Whether the doctrine of recantation applies as a defense to perjury when the false statement has already substantially affected the proceeding or the falsity has been or will be exposed.

Arguments of the Parties

Appellant's Arguments (State of Florida)

The State argued that perjury was properly charged because the false testimony was material and given under oath.
The recantation doctrine is limited and only applies when the false statement is retracted voluntarily before the falsity is or will be exposed or substantially affect the proceeding.
In this case, whether the recantation was timely and voluntary before exposure was a factual question for the jury, and dismissal was improper.

Appellee's Arguments (T.R. Carter)

The appellee contended that he had recanted the false testimony by voluntarily providing the correct information promptly upon being made aware of its falsity.
The trial court found that the recantation was proper and timely, thus barring the perjury charge under the recantation doctrine.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Brannen v. State, 94 Fla. 656, 114 So. 429 (1927)	Established the recantation doctrine as a defense to perjury when a witness voluntarily retracts false testimony before exposure or contradictory evidence is presented.	The trial court relied on Brannen to dismiss the perjury charge; the appellate court acknowledged the doctrine but limited its application where falsity has been or will be exposed.
People v. Gillette, 126 App. Div. 665, 111 N.Y.S. 133	Supports the policy encouraging witnesses to correct false statements without fear of perjury prosecution.	Quoted by the court to explain the rationale behind the recantation doctrine.
Sherman v. State, 135 Fla. 243, 184 So. 843 (1938)	Affirmed perjury conviction where false testimony was not retracted until after the truth was known and the falsehood no longer served the defendant.	Applied as analogous to the present case to illustrate when recantation is not a valid defense.

Court's Reasoning and Analysis

The court recognized the fundamental importance of truthful testimony and the policy behind allowing witnesses to recant false statements voluntarily to promote justice. However, it clarified that perjury is complete upon willfully swearing to a material falsehood. The recantation defense applies only when the witness acknowledges the falsity, retracts voluntarily, and provides the true facts before the falsehood has affected the proceeding or before it is or will be exposed. The court found that in this case, the questions of whether the appellee's recantation met these criteria were factual issues for a jury to decide. Because the trial court dismissed the information prematurely, the appellate court reversed and remanded for further proceedings consistent with this standard.

Holding and Implications

The appellate court REVERSED the trial court's order dismissing the perjury information and REMANDED the case for reinstatement of the information and further proceedings.

The direct effect is that the perjury charge against appellee T.R. Carter will proceed. The court emphasized the limited scope of the recantation defense and did not establish new precedent beyond clarifying its application. No broader legal changes or implications beyond the parties were discussed.

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STATE OF FLORIDA, APPELLANT, v. T.R. CARTER, APPELLEE.

MOORE, Judge.

Appellee was charged with the crime of perjury under Section 837.02(1), Florida Statutes (1977) as the result of testimony given on deposition in a civil trial. Pursuant to Fla.R.Crim.P. 3.190(c)(4) the defendant filed a motion to dismiss the information on the basis that the defendant had recanted the alleged false statement. The trial court granted the motion to dismiss and the State appeals that order. We disagree with the trial court and reverse.

One Carrie Brunson was allegedly injured in an automobile accident on June 20, 1975. She was treated by the appellee, T.R. Carter, a chiropractic physician, for injuries allegedly sustained as a result of that accident. Brunson filed suit to recover for her alleged injuries and during the course of pre-trial discovery appellee's deposition was taken by the defense. After being placed under oath Dr. Carter was asked, inter alia, whether or not he had ever seen Brunson prior to the accident of June 20, 1975. To this he responded in the negative. Subsequently, and upon prompting by the defense attorney who indicated he had reason to believe that the doctor had treated Brunson on prior occasions, the doctor agreed to check his records for additional files. On the following day the doctor directed a letter to the attorney in which he stated, "Enclosed is copy of medical information on the above patient. If I may be of further assistance, please feel free to contact me at any time." The medical information enclosed with that letter indicated 79 visits by Brunson to Dr. Carter's office between June 6, 1974 and January 17, 1975. Based upon this information the state attorney formally accused appellee of the crime of perjury.

In dismissing the information for perjury, the trial court relied upon the doctrine of recantation as established in Brannen v. State, 94 Fla. 656, 114 So. 429 (1927). In Brannen, the evidence established that the accused had been a witness in a criminal trial and voluntarily requested the court to allow him to resume the witness stand to correct his previous testimony regarding a material matter in the criminal trial. He did so before the State had offered any contradictory evidence and before he knew that the State had any such evidence. In reversing the perjury conviction the court quoted from People v. Gillette, 126 App. Div. 665, 111 N.Y.S. 133 as follows:

"`A judicial investigation or trial has for its sole object the ascertainment of the truth, that justice may be done. It holds out every inducement to a witness to tell the truth by inflicting severe penalties upon those who do not. This inducement would be destroyed if a witness could not correct a false statement except by running the risk of being indicted and convicted for perjury.'"

We agree with this basic concept of the underlying reasons for establishment of the recantation doctrine. Our system of justice cannot endure perjurious testimony and individuals should be encouraged to voluntarily make corrective statements. Nevertheless, perjury is complete upon the willful false swearing to any material matter. Recantation is a defense to an allegation of perjury only where there is an acknowledgement of the falsity of the original sworn statement, a voluntary retraction of that statement, and a new statement which discloses the true facts. It is not a viable defense where the perjured testimony has substantially affected the proceeding or it has become manifest that such falsity has been or will be exposed. Otherwise, one could rest on his lie, allowing it to substantially affect a proceeding, and never retract unless the falsity had been exposed. This would provide no inducement or encouragement to tell the truth.

In the instant case the appellee testified that he had not seen the patient on any prior occasion. This testimony was given under oath and was directed to a material matter in litigation. Under the facts of this case we feel that whether or not there was an acknowledgement of the falsity and a voluntary retraction before the falsity had been exposed were questions of fact for the jury. These facts are more akin to those in Sherman v. State, 135 Fla. 243, 184 So. 843 (1938) where the defendant's conviction for perjury was affirmed. There, after giving false testimony the defendant did not retract until the truth had become known and the false testimony would no longer serve his purpose.

It is our opinion that the State properly charged the appellee with perjury and the order granting the motion to dismiss the information was in error. The order dismissing the information is therefore reversed and this cause remanded for reinstatement of the information and further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAUKSCH, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge, dissenting:

I respectfully dissent.

The majority misconstrues the law with regard to the crime of perjury as it now exists in the State of Florida. Since the case of Brannen v. State, 94 Fla. 656, 114 So. 429 (1927), Florida has been counted among those jurisdictions which recognize that if a witness recants within an appropriate time and under satisfactory circumstances, and makes known the truth before any prejudicial effects have accrued, then the offense of perjury has not been committed. See 25 Fla.Jur., Perjury § 44, at 40; 60 Am.Jur.2d, Perjury § 47, n. 7; 64 A.L.R.2d, Recantation as Defense in Perjury Prosecutions, § 4. In the instant case, the trial court in a lengthy and carefully considered order entered on a stipulated statement of facts, determined that the appellee had properly recanted the incorrect testimony in essentially the same proceeding and had fully and completely apprised opposing counsel of the sought-after information.

In my view, no error was made to appear. I would, therefore, affirm the trial court's dismissal of the information.