DANIEL L. HERRICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A claim of recanted testimony can be brought via Florida Rule of Criminal Procedure 3.850, and the allegations here are sufficient to warrant further proceedings.
[1] Claims of ineffective assistance of counsel are subject to summary denial if the allegations are insufficient on their face.
[2] A claim of recanted testimony by a prosecution witness may be raised in a motion for postconviction relief.
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Join FLexlaw to unlock all legal intelligenceDaniel Herrick appealed the summary denial of his motion for postconviction relief, alleging a prosecution witness testified falsely after being threa…
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PER CURIAM.
Daniel Herrick appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
The motion raises five separate issues, three of which should have been argued (if at all) on direct appeal. As to Herrick’s claim of ineffective assistance of counsel, we agree with the trial court that Herrick’s allegations are insufficient on their face. Only the remaining claim merits further consideration.
Herrick alleges that a key prosecution witness, one Michael Dino Brown, testified falsely after having been threatened by the state. Attached to the motion are two affidavits purportedly executed by Brown recanting his trial testimony. The trial court’s order declares that Herrick should have raised this issue on direct appeal. We disagree. A claim of recanted testimony is similar in principle to “newly discovered evidence,” and as such can be brought via Florida Rule of Criminal Procedure 3.850. See Norris v. State, 586 So. 2d 1320 (Fla. 2d DCA 1991).
We further find that Herrick’s allegations are sufficient on their face to allow relief. From the limited record now before us it appears that Brown’s testimony was crucial to the state’s case. Accordingly, we remand for further proceedings with regard to this one issue. The trial court should re-examine the files and records to determine whether anything therein conclusively demonstrates that Herrick would not be entitled to relief even if Brown’s affidavits were taken as true. If so, the court may again deny the motion, attaching to its order whatever documentation it has relied upon in reaching that conclusion. Failing this, an evidentiary hearing will be necessary. All parties should take note of the supreme court’s recent decision Jones v. State, 591 So. 2d 911, (Fla.1991), in which the court relaxed somewhat the standard of proof for claims of newly discovered evidence.
Affirmed in part, reversed in part, and remanded with instructions.
CAMPBELL, A.C.J., and THREADGILL and ALTENBERND, JJ., concur.
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Cited By
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Venuto v. State, 615 So. 2d 255 (Fla. 3d DCA 1993)…different, had the witness either not testified or had the testimony at trial been as now recanted. See Jones v. State, 591 So. 2d 911 (Fla.1991); Gledening v. State, 17 F.L.W. D1251, [604] So. 2d [839] (Fla. 2d DCA May 13, 1992); Herrick v. State, 590 So. 2d 1109 (Fla. 2d DCA 1991). See also Collins v. State, 423 So. 2d 516, 518 (Fla. 5th DCA 1982). These determinations require an evidentiary hearing. Jones, 591 So. 2d at 916; Cammarano, 602 So. 2d at 1371. Therefore, we reverse and remand this cause back t…
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Cammarano v. State, 602 So. 2d 1369 (Fla. 5th DCA 1992)…s, or raised in connection with Cammarano's prior rule 3.850 motion filed with this court in 1987. We disagree. Recanted testimony is treated the same as a claim of newly discovered evidence when raised in a rule 3.850 motion. See Herrick v. State, 590 So. 2d 1109 (Fla. 2d DCA 1991). A claim of newly discovered evidence is not time barred if such evidence could not have been ascertained earlier, with the exercise of due diligence. See Jones v. State, 591 So. 2d 911 (Fla.1991). Similarly, no abuse of procedure…1 / 2
Authorities Cited
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- Norris v. State, 586 So. 2d 1320 (Fla. 2d DCA 1991)