ISAAC GREEN

v.

STATE OF FLORIDA

PER CURIAM.

AFFIRMED.

OSTERHAUS, C.J., and LEWIS, J., concur; B.L. THOMAS, J., concurs with opinion. _____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

B.L. THOMAS, J, concurring.

I concur in the Court’s decision to affirm the denial of the successive motion for postconviction relief alleging newly discovered evidence, filed under Florida Rule of Criminal Procedure 3.850. I note that this Court recently affirmed the denial of Appellant’s motion for postconviction relief concerning a separate, unrelated conviction for attempted sexual battery: A jury found Appellant guilty of attempted sexual battery with victim physically helpless to resist and trespass of an occupied structure.

The facts of this case are found in the record on direct appeal in Green v. State, 295 So. 3d 1164 (Fla. 1st DCA 2020).

Evidence at trial showed that the victim had been drinking alcoholic beverages during the night in question. After walking back to her apartment from the bar, she went to her bedroom and fell asleep. She woke up, confused and terrified, finding a strange man, Appellant, standing over her with a camera flash going up and down her body. Appellant told her they met at a club and that they already had sex. Appellant then hugged her and left. The victim told police that she could not remember anything from when she was halfway home until the point when Appellant began recording her using his cellphone. Green v. State, No. 1D2023-3168 (Fla. 1st DCA November 27, 2024).

There is a two-prong test for determining postconviction claims alleging newly discovered evidence relating to guilty pleas: First, the evidence must not have been known by the trial court, the party, or counsel at the time of the plea, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence.

Second, the defendant must demonstrate a reasonable probability that, but for the newly discovered evidence, the defendant would not have pleaded guilty and would have insisted on going to trial. “[I]n determining whether a reasonable

probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.” Grosvenor, 874 So. 2d at 1181–82. Long v. State, 183 So. 3d 342, 346 (Fla. 2016).

Appellant entered a plea of guilty in the instant case in 2018. In his successive postconviction motion, he claimed that he was unaware until 2022 of a lab report generated in 2014 by the Florida Department of Law Enforcement (FDLE) stating that FDLE could not identify a fingerprint taken from the victim’s bedroom doorframe and purported to be Appellant’s. An employee of the Gainesville Police Department later reported identifying the print as Appellant’s in 2017.

Appellant argues that if he had known of the prior inconclusive FDLE report he could have impeached the later identification, and that this, combined with the victim’s having changed her story from originally asserting that her assailant did not penetrate her or ejaculate to a later version that he did, and the victim having described her assailant as shorter than Appellant, would have allowed Appellant to present a defense that he was not the assailant.

Appellant asserts that under these circumstances, he would not have agreed to a plea and that there was a reasonable probability that the jury would have acquitted him after trial.

The trial court properly denied Appellant’s newly discovered evidence claim.

The record shows that Appellant had no prior arrests before 2017, so there were no fingerprints to compare to the latent print lifted from the victim’s doorframe until Appellant’s arrest in 2017.

Thus, the inconclusive 2014 report would not have effectively impeached the subsequent 2017 fingerprint identification.

Furthermore, the trial court properly found that the FDLE report was not newly discovered evidence because the State disclosed the report to Appellant’s counsel in January 2018. Prior to entering his plea, Appellant also stated that he knew that the State intended to present fingerprint evidence, that his trial counsel had retained a fingerprint expert, and that the results of the expert’s review were still outstanding. Appellant’s successive postconviction claim was thus meritless. _____________________________

Olivia M. Goodman of O’Brien Hatfield, P.A., Tampa, for Appellant.

Ashley Moody, Attorney General, and Miranda L. Butson, Assistant Attorney General, Tallahassee, for Appellee.