JOHN FELICE VEACH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The appellant challenges an order by which his postconviction motion alleging ineffective assistance of counsel and newly discovered evidence, pursuant to Florida Rule of Criminal Procedure 3.850, was denied. We affirm in part and reverse in part. By appellant’s own admission, more than two years passed between his final sentencing and the filing of this motion. Therefore, we affirm the trial court’s denial of the claim as untimely under rule 3.850(b).
However, because the trial court failed to attach any documentation to support its denial of appellant’s claim of newly discovered evidence, we reverse and remand that portion of the order to the trial court for further proceedings. The trial court shall either attach to its order denying relief those portions of the record which conclusively show that appellant is entitled to no relief or hold an evidentiary hearing. If an evidentiary hearing is required, the burden will be on the appellant to prove that the withdrawal of his plea is necessary to correct a “manifest injustice.” See Taylor v. State, 662 So. 2d 1031 (Fla. 1st DCA 1995); Scott v. State, 629 So. 2d 888 (Fla. 4th DCA 1993).
AFFIRM in part and REVERSE in part.
KAHN, MICKLE and LAWRENCE, JJ., concur
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Citator
Cited By
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Miller v. State, 814 So. 2d 1131 (Fla. 5th DCA 2002)…ary to correct a manifest injustice. See Williams v. State, 316 So. 2d 267 (Fla.1975); Daniel v. State, 740 So. 2d 1179 (Fla. 2d DCA 1999), rev. denied, 751 So. 2d 1251 (Fla.2000); Kalapp v. State, 729 So. 2d 987 (Fla. 5th DCA 1999); Veach v. State, 705 So. 2d 135 (Fla. 1st DCA 1998). We adopt the manifest injustice standard for this case and conclude that Miller did not satisfy that standard. Miller is not claiming he is innocent but merely that he is guilty of a lesser offense. However, the state dropped t…
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Goodman v. State, 845 So. 2d 253 (Fla. 1st DCA 2003)…s guilty later seeks to withdraw that plea based upon a facially sufficient claim of newly discovered evidence, the trial court must support its denial of that claim with record attachments or it must hold an evidentiary hearing. See Veach v. State, 705 So. 2d 135, 136 (Fla. 1st DCA 1998). See also, e.g., McLin v. State, 827 So. 2d 948, 956 (Fla.2002). The trial court did neither. Rather, it merely denied the appellant’s motion as legally insufficient. Accordingly, we reverse the trial court’s summary denia…
Authorities Cited
- Scott v. State, 629 So. 2d 888 (Fla. 4th DCA 1993)
- Taylor v. State, 662 So. 2d 1031 (Fla. 1st DCA 1995)