BEFORE HAWKINS, P.J.; ROBERTSON AND SULLIVAN, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
This is an appeal from Circuit Court denial of a convicted felon's application for post-conviction relief. The grounds asserted by petitioner are newly discovered evidence and, more specifically, the confession of another to the crime for which petitioner has been convicted. Because the Circuit Court applied to petitioner the requirement that he prove his claim by clear and convincing evidence, when in fact our law supports only a preponderance of the evidence standard, we vacate and remand.
On February 11, 1986, Sylvester McClendon was convicted of a charge of sexual battery and sentenced to a term of thirty (30) years imprisonment. The victim in this case was McClendon's five-year-old daughter.
On September 16, 1986, McClendon filed a motion for post-conviction relief based upon a claim of newly discovered evidence supporting his innocence. Miss. Code Ann. 99-39-5 (1)(e) (Supp.1988). McClendon claims that while he was incarcerated in the Hinds County Detention Center, he learned that another detainee (a man named Larry Luckett) in discussions with other inmates had implicated himself as the assailant of McClendon's daughter. McClendon then sought out
Luckett and the witnesses who had heard him confess to the crime and obtained affidavits from them. He then filed a motion for post-conviction relief attaching these affidavits as exhibits to the motion. The Circuit Court granted McClendon's request for an evidentiary hearing which was held on September 17, 1986.
McClendon testified at the hearing and stated that in late July of 1986, he was approached by another inmate, Nathaniel Jackson, who informed him that he overheard Luckett confess to McClendon's crime while his hair was being cut. McClendon had known Luckett prior to his arrest on the sexual battery charge, having done mechanical work on Luckett's car on two or three occasions.
McClendon then arranged a meeting with Luckett in the presence of a corrections officer. At this meeting Luckett told McClendon that, on the date of the assault, he had come to McClendon's house to get him to work on his car. Luckett entered the house looking for McClendon and found three children asleep on the living room sofa. McClendon related that Luckett told him that the oldest girl had her dress up and did not have any panties on. Luckett then attempted to penetrate the young girl, but she cried out for her father and Luckett fled. At this meeting, McClendon had Luckett write out and sign a confession. McClendon later composed an affidavit containing this information which Luckett signed on August 4, 1986.
Jerome Banks, the barber at the Hinds County Detention Center and Luckett's alleged confidant, then testified. He stated that while he was cutting Luckett's hair, Luckett stated that he felt guilty about having another man serve time for something that he had done. Banks then testified that Luckett then related to him the events of October 10, 1985, involving McClendon's daughter. He stated that Luckett told his story in the presence of Nathaniel Jackson. The version recounted by Banks was the same as that told to McClendon.
Luckett also testified at the hearing. His testimony regarding the events of October 10, 1985, differed significantly from the information contained in his handwritten confession and his affidavit. In his testimony at the hearing Luckett stated that the young girl asleep on the couch was wearing only panties. In the affidavit, however, Luckett had stated that the young girl had on a dress but no panties. In his testimony, Luckett denied that he attempted penetration. In the affidavit, Luckett had stated that he did attempt to penetrate the victim.
On cross-examination, Luckett stated he was in Hinds County Detention Center awaiting trial on a charge of murder. He also stated that he did not know who typed his affidavit or how the typist obtained the information which it contained.
By order dated October 15, 1986, the Circuit Court denied McClendon's motion for ...