RANDY HILBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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GRIFFIN, Judge.
Appellant seeks review of his rule 3.850 motion for post-conviction relief based on newly-discovered evidence. Because we conclude the motion is sufficient to warrant an evidentiary hearing, we reverse and remand to the lower court for this purpose.
The lower court’s reasons for summarily denying relief were: (1) the affidavit of Roberta Everson that the victim told her that appellant did not commit the crime of which he was convicted was insufficient because the affiant had not testified at trial and (2) the report of the alleged recantation was stale. As to the first issue, at this stage, the affidavit of a person to whom the victim allegedly recanted can be sufficient to warrant a hearing. See Jones v. State, 591 So. 2d 911 (Fla.1991). As to the second issue, the delay is not fatal if credibly explained. Counsel should be appointed, if necessary, to adequately develop the facts.
REVERSED and REMANDED.
COBB and W. SHARP, JJ., concur.
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McLIN v. State, 827 So. 2d 948 (Fla. 2002)…the witness’s testimony will change to such an extent as to render probable a different verdict.” Armstrong v. State, 642 So. 2d 730, 735 (Fla.1994). An evidentiary hearing is usually required to make that determination. See e.g., Hilbert v. State, 666 So. 2d 1059, 1059 (Fla. 5th DCA 1996); Venuto v. State, 615 So. 2d 255, 256 (Fla. 3d DCA 1993). Id. (emphasis supplied). This statement by the Fourth District also comports with a statement by the First District, which has correctly observed that “summary deni…
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Robinson v. State, 736 So. 2d 93 (Fla. 4th DCA 1999)…bable a different verdict.” Armstrong v. State, 642 So. 2d 730, 735 (Fla.1994), cert. denied, 514 U.S. 1085, 115 S.Ct. 1799, 131 L.Ed.2d 726 (1995). An evidentiary hearing is usually required to make that determination. See e.g., Hilbert v. State, 666 So. 2d 1059, 1059 (Fla. 5th DCA 1996); Venuto v. State, 615 So. 2d 255, 256 (Fla. 3d DCA 1993). In this ease, the trial court denied relief after reviewing the entire trial record and Sli-wa’s affidavit, but without hearing any evidence. After conducting the sa…
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LEE v. State, 677 So. 2d 312 (Fla. 1st DCA 1996)…S.Ct. 722, 133 L.Ed.2d 674 (1996) (treating untimely motion for rehearing based on alleged recantation of testimony by state witness as a motion under Rule 3.850 and directing trial court to conduct evidentiary hearing). See also, Hilbert v. State, 666 So. 2d 1059 (Fla. 5th DCA 1996) (reversing denial and remanding for evidentiary hearing Rule 3.850 allegation of recantation of testimony by state witness); Venuto v. State, 615 So. 2d 255 (Fla. 3d DCA 1993) (recantation of testimony by key state witness may re…
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- Jones v. State, 591 So. 2d 911 (Fla. 1991)