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WILLIAM TOBIAS v. STATE OF MISSISSIPPI

APRIL 08, 1987

WILLIAM TOBIAS
v.
STATE OF MISSISSIPPI



ON MOTION FOR POST-CONVICTION RELIEF

BEFORE HAWKINS, P.J., PRATHER AND SULLIVAN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

William Tobias was tried and convicted in the Hinds County Circuit Court for the charge of house burglary in the Second Judicial District of Hinds County. On March 8, 1985, he was found guilty and sentenced as a habitual offender to serve ten years in the Mississippi Department of Corrections without parole. We affirmed his conviction per curiam in Tobias v. State, 495 So. 2d 510 (Miss. 1986).

 Tobias has filed a pro se motion for post-conviction

 relief, requesting that his conviction be set aside and a new trial granted. Tobias assigns the following grounds for relief: That the State's primary witness and co-defendant committed perjury when he testified that Tobias was involved in the burglary for which he was convicted. The affidavit of the co-defendant, Gary Perryman, has been attached to Tobias' petition, where Perryman states that his testimony was false and Tobias took no part in the burglary.

 On October 15, 1984, the home of Ernest Robinson was burglarized. One of the culprits, Gary Perryman, was later apprehended and identified William Tobias as one of his accomplices. Theo Brown also testified that Perryman and three or four other men tried to sell him some guns. Brown stated he knew none of the men except Perryman. Brown testified that Tobias looked like one of the men in the group.

 Tobias' father and cousin testified that Tobias had been with them during the time of the burglary.

 Attached to Tobias' motion for post-conviction relief is Perryman's affidavit in which he admits he committed perjury. Perryman's affidavit certified the following:

 2. That I was a witness for the prosecution and the testimony that I gave was given under force by threat, and my testimony was false and incorrect.

 * * * * *

 4. That William Tobias did not committ [sic] the burglary in question, nor to the best of my awareness did he have any knowledge there of [sic], neither did he aid and abeit [sic] in its commission.

 LAW

 This case is factually identical to In re Smith, 457 So. 2d 911 (Miss. 1984). In Smith, two eyewitnesses made an in-court identification of Willie Albert Smith as the person who abducted the victim later found murdered. These witnesses' identification of Smith at trial" formed an integral part "of this Court's opinion which affirmed Smith's conviction. 457 So. 2d at 911.

 Smith then filed a motion for leave to file petition for writ of error coram nobis. His grounds for post-conviction relief were ...


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