FRANCISCO FUSTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Francisco Fuster appealed the denial of his Rule 3.850 post-conviction motion seeking relief from multiple convictions for child abuse and sexual battery. The court affirmed the denial, finding his ineffective assistance of counsel claim time-barred and his newly discovered evidence claims either legally insufficient or based on facts known at trial.
The court held that none of Fuster's four claims merited relief. The ineffective assistance of counsel claim was time-barred under the two-year rule. The gonorrhea testing evidence claim did not meet the standard for newly discovered evidence. The child witness testimony claim was untimely and case law from other jurisdictions was not cognizable absent Supreme Court of Florida or United States Supreme Court authority. The recantation claim failed because the witness was unwilling to testify and the factual basis was known at trial, and expert testimony on witness credibility was prohibited.
[1] A claim of ineffective assistance of counsel is time-barred if not asserted within two years of the dismissal of a direct appeal.
[2] Newly discovered evidence must meet the standard set forth in Jones v. …
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Join FLexlaw to unlock all legal intelligence“Defendant's claim of ineffective assistance of counsel, is time barred, by virtue of defendant's failure to assert this claim within two years of the dismissal of his direct appeal on July 25, 1986, and the return of jurisdiction to this Court.”
Establishes the two-year statute of limitations for ineffective assistance of counsel claims in post-conviction proceedings
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Join FLexlaw to unlock all legal intelligenceFuster was convicted of multiple counts of child abuse and sexual battery. His convictions were affirmed on direct appeal in Escalona v. State, 588 So…
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PER CURIAM.
The defendant seeks review of the following order denying his Rule 3.850 motion for relief from the multiple convictions for child abuse and sexual battery affirmed in Escalona v. State, 588 So. 2d 337 (Fla. 3d DCA 1991):
“1. Defendant’s claim of ineffective assistance of counsel, is time barred, by virtue of defendant’s failure to assert this claim within two years of the dismissal of his direct appeal on July 25, 1986, and the return of jurisdiction to this Court. Baggett v. State, 637 So. 2d 303 (Fla. 1st DCA 1994); Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987).
2. Defendant’s claim of newly discovered evidence with regard to gonorrhea testing, does not constitute new evidence under the standard set forth in Jones v. State, 591 So. 2d 911 (Fla.1991).
3. Defendant’s claim of newly discovered evidence and case law, with regard to testimony of child witnesses and interview techniques employed by investigators, is a matter which was litigated at trial, and is unaffected by the procedures adopted by the New Jersey courts in State v. Michaels, 642 A. 2d 1372, 136 N.J. 299 (1994) as such evolutionary developments in the law are not cognizable in post-conviction proceedings unless emanating from the Supreme Court of Florida or the United States Supreme Court. Witt v. State, 387 So. 2d 922 (Fla.1980).
4. Defendant’s final contention concerning newly discovered evidence in the form of the witness, Ileana Fuster’s, recan tation of her trial testimony, is such that the Court initially deemed appropriate for an evidentiary hearing. However, it is now clear to the Court, and conceded by the defendant, that Ileana Fuster is not willing to testify. The evidence proffered by defendant establishes that defendant seeks to prove this claim by presentation of Ileana’s 1985 deposition and trial testimony regarding the conditions of her confinement and psychological treatment by her therapists, and to then present expert testimony as to the effect of this on her ability to testify truthfully. It is, however, well established that an expert is prohibited from commenting to the fact-finder as to the truthfulness or credibility of a witness’s statement in general. State v. Townsend, 635 So. 2d 949 (Fla.1994). Moreover, it is clear that the facts upon which this claim is based were known or ascertainable at the time of trial. That the defendant seeks to present new experts, who draw different conclusions, does not present a claim of newly discovered evidence. Elledge v. Graham, 432 So. 2d 35 (Fla.1983); State v. Matera, 266 So. 2d 661 (Fla.1972).
Inasmuch as the files and record in this ease conclusively show that the defendant is entitled to no relief, it is hereby
ORDERED AND ADJUDGED that the Motion for Post-Conviction Relief be, and the same is, hereby DENIED.”
We entirely agree.
Affirmed.
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Vega v. State (Fla. 5th DCA 2020)…ity and relevance of the evidence and any inconsistencies in the newly discovered evidence.” Id. A defendant who “seeks to present new experts, who draw different conclusions, does not present a claim of newly discovered evidence.” Fuster v. State, 664 So. 2d 18, 20 (Fla. 3d DCA 1995) (citing Elledge v. Graham, 432 So. 2d 35 (Fla. 1983)). Similarly, the Florida Supreme Court has generally “not recognized ‘new opinions’ or ‘new research studies’ as newly discovered evidence.” Schwab v. State, 969 So. 2d 318,…
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T.P. v. Dep't of Child. & Families (Fla. 4th DCA 2025)…ns. Newly Discovered Evidence "A [litigant] who ‘seeks to present new experts, who draw different conclusions, does not present a claim of newly discovered evidence.” Vega v. State, 288 So. 3d 1252, 1257 (Fla. 5th DCA 2020) (quoting Fuster v. State, 664 So. 2d 18, 20 (Fla. 3d DCA 1995)); see also Asay v. State, 210 So. 3d 1, 22–23 (Fla. 2016) (“New opinions or new research studies have routinely been rejected as newly discovered evidence.”). The trial court should deny a motion for relief from judgment based…
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M.P. v. Dep't of Child. & Families (Fla. 4th DCA 2025)…. Newly Discovered Evidence "A [litigant] who ‘seeks to present new experts, who draw different conclusions, does not present a claim of newly discovered evidence.” Vega v. State, 288 So. 3d 1252, 1257 (Fla. 5th DCA 2020) (quoting Fuster v. State, 664 So. 2d 18, 20 (Fla. 3d DCA 1995)); see also Asay v. State, 210 So. 3d 1, 22–23 (Fla. 2016) (“New opinions or new research studies have routinely been rejected as newly discovered evidence.”). The trial court should deny a motion for relief from judgment based…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- State v. Townsend, 635 So. 2d 949 (Fla. 1994)
- Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987)
- State v. Matera, 266 So. 2d 661 (Fla. 1972)
- Elledge v. Graham, 432 So. 2d 35 (Fla. 1983)
- Baggett v. State, 637 So. 2d 303 (Fla. 1st DCA 1994)
- Escalona v. State, 588 So. 2d 337 (Fla. 3d DCA 1991)