JOEY BURTON THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joey Burton Thompson appeals the denial of his Rule 3.850 post-conviction relief motion, claiming his former wife has confessed to the first-degree murder for which he was convicted. The appellate court reverses and remands, finding the lower court failed to create an adequate record for meaningful appellate review of Thompson's newly discovered evidence claim.
The appellate court reversed the denial of post-conviction relief as to the third ground and remanded for either an evidentiary hearing or for entry of an order attaching those portions of the record demonstrating that the lower court properly considered whether the newly discovered evidence, in light of the defense's opportunity to cross-examine Janice at trial, would have resulted in a different verdict.
[1] A motion for post-conviction relief may be denied without an evidentiary hearing if the movant fails to establish that newly discovered evidence would have conclusively p…
[2] The absence of a trial transcript or relevant portions of the record precludes meaningful appellate review of a denial of post-conviction relief.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Thompson claims that his former wife, Janice Thompson, has since confessed to the crime of first-degree murder for which Thompson was convicted herein.”
Establishes the basis of Thompson's third ground for post-conviction relief—newly discovered evidence in the form of his former wife's confession.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThompson was convicted of first-degree murder. At trial, Thompson accused his former wife, Janice Thompson, of committing the murder, and she testifie…
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MICKLE, Judge.
Joey Burton Thompson appeals from the order denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand for further proceedings with regard to the third ground raised in the motion.
Thompson sets forth three grounds for relief. We find the first two grounds to be without merit. As ground three, Thompson claims that his former wife, Janice Thompson, has since confessed to the crime of first-degree murder for which Thompson was convicted herein. Attached to the motion are affidavits from several individuals who attest that Janice so confessed to them some two years after Thompson’s conviction.
The lower court, in denying post-conviction relief, noted that at trial Thompson had accused his former wife of the murder and that she had testified for the prosecution as a rebuttal witness. The lower court then determined that Thompson had failed to establish that this newly discovered evidence would have conclusively prevented the entry of judgment. The lower court based this determination on the “existence of other evidence of Thompson’s guilt, the opportunity of the defense at trial to question Janice Thompson and the affirmance of Thompson’s guilt upon appeal.” Unfortunately, no record or trial transcript was provided for our review nor did the lower court attach the transcript of Janice’s testimony at trial or those portions of the record evincing Thompson’s guilt. The absence of such precludes the possibility of meaningful review on appeal.
We therefore REVERSE, and REMAND for either an evidentiary hearing, or for entry of an order attaching those portions of the record and/or transcript showing that the lower court satisfied itself that the evidence of Thompson’s guilt, in conjunction with defense’s opportunity to cross-examine Janice at trial, was such that the introduction of this new evidence would not have resulted in a different verdict. In all other respects, the order appealed from is affirmed.
ZEHMER and BARFIELD, JJ., concur.
ON MOTION FOR REHEARING AND/OR CLARIFICATION
PER CURIAM.
We grant appellant’s motion for rehearing and/or clarification for the limited purpose of specifically directing the trial court, upon remand, to apply the standard of review for newly discovered evidence espoused in Jones v. State, 591 So. 2d 911 (Fla.1991).
ZEHMER, C.J., BARFIELD and MICKLE, JJ. CONCUR.
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Citator
Cited By
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Murrah v. State, 773 So. 2d 622 (Fla. 1st DCA 2000)…rial court attach any portion of the trial transcript to support its conclusion that other evidence adduced at the original trial made it unlikely that the newly discovered evidence would result in an acquittal on a new trial. See Thompson v. State, 626 So. 2d 967, 968 (Fla. 1st DCA 1993). The absence of relevant portions of the trial transcript precludes meaningful review of this ground for decision. Accordingly, we reverse the order insofar as it denies Mr. Murrah’s claim for relief on account of newly dis…
Authorities Cited
- Jones v. State, 591 So. 2d 911 (Fla. 1991)