LARRY KENDRICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Kendrick appeals the summary denial of his Rule 3.850 motion for postconviction relief based on newly discovered evidence. The court reverses and remands because the trial court failed to conduct an evidentiary hearing to evaluate whether newly discovered testimony from his codefendant—recanting his trial testimony and alleging police coercion—would probably result in acquittal on retrial.
The court reversed and held that where newly discovered evidence presents conflicting evidence of guilt, the trial court must conduct an evidentiary hearing or attach record excerpts conclusively refuting the claim to evaluate whether the new evidence would probably produce an acquittal on retrial.
[1] Newly discovered evidence qualifies if it was unknown to the court, party, or counsel at the time of trial and could not have been discovered through diligence.
[2] Evidence can be considered newly discovered when it consists of testimony from a co-defendant who was previously unwilling to testify due to Fifth Amendment concerns.
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Join FLexlaw to unlock all legal intelligence“This testimony appears to qualify as newly discovered evidence because unknown to the trial court, the party, or counsel at the time of trial; because Ralph was unwilling to give it previously; and the defendant or his counsel could not have secured it previously by means of due diligence.”
Establishes the test for newly discovered evidence and applies it to the codefendant's recanted testimony
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Join FLexlaw to unlock all legal intelligenceKendrick was convicted of cocaine trafficking after a jury trial with his cousin Ralph as codefendant. At trial, police testified they observed Kendri…
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PER CURIAM.
Larry Kendrick appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, based on newly discovered evidence. We reverse.
Appellant was found guilty as charged of trafficking in cocaine after a jury trial in which he was tried along with a codefendant, his cousin Ralph Kendrick (Ralph), whose defense was to shift all the blame to Appellant.1 Neither testified at trial.
However, two police officers testified for the state that they observed Appellant hand a white sock to Ralph, who ran upon seeing the police, then threw the sock, which was retrieved and contained cocaine. On Appellant’s behalf, two defense witnesses testified to observing Ralph to be in possession of the cocaine before he approached Appellant.
Appellant’s newly discovered evidence consisted of Ralph’s sworn testimony, given for the first time on November 20, 1997, more than six years after their trial, that the cocaine was not Appellant’s, but Ralph’s, and that he had lied in telling the police that it was Appellant’s. Ralph further testified that Officer Brown, one of the officers who testified at trial, told him to say that he got the cocaine from Appellant in order to keep his own prison time to a minimum. This testimony appears to qualify as newly discovered evidence because unknown to the trial court, the party, or counsel at the time of trial; because Ralph was unwilling to give it previously; and the defendant or his counsel could not have secured it previously by means of due diligence. See Hallman v. State, 371 So. 2d 482, 485 (Fla.1979); State v. Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978) (treating as newly discovered evidence the affidavit of defendant’s codefendant that he committed the robbery without the defendant’s assistance).
A defendant is not automatically entitled to an evidentiary hearing on filing a motion asserting newly discovered evidence. See Johnson v. Singletary, 647 So. 2d 106 (Fla.1994) (determination must be made on ease-by-ease basis); Hough v. State, 679 So. 2d 1300 (Fla. 5th DCA 1996) (hearing was unnecessary on affidavit stating someone else committed the crime, where appellant had been identified as peipetrator by victim as well as by other codefendant).
However, where there is conflicting evidence of the defendant’s guilt, it is necessary for the trial court to evaluate the weight of the newly discovered evidence and the evidence which was introduced at the trial to determine whether the new evidence would probably have resulted in an acquittal. See Jones v. State, 591 So. 2d 911, 915-16 (Fla.1991).
Often, this analysis will require an evidentiary hearing. See Roberts v. State, 678 So. 2d 1232, 1235 (Fla.1996) (finding claim that prosecution witness recanted trial testimony constituted newly discovered evidence, that claim was cognizable on rule 3.850 motion, and that trial court should not have denied claim without an evidentiary hearing).
See also Stone v. State, 616 So. 2d 1041 (Fla. 4th DCA 1993) (affirming denial of rule 3.850 motion based on newly discovered evidence after hearing in which trial court determined affiant lacked credibility); Glendening v. State, 604 So. 2d 839, 841 (Fla. 2d DCA) (denying motion after evidentiary hearing either on finding that witness was not testifying truthfully or on conclusion that appellant did not establish that verdict would have been different), rev. denied, 613 So. 2d 4 (Fla.1992).
The attachments to the order of denial in the instant case — which include a tran script of the testimony of Officer. Brown, whose credibility has been attacked, but not the testimony of the other officer — do not establish that the newly discovered evidence was not of such nature that it would probably produce an acquittal on retrial. Therefore, this cause is reversed and remanded for the trial court to hold an evidentiary hearing or. for the attachment of farther record excerpts conclusively refuting Appellant’s claim.
STONE, C.J., and DELL and FARMER, JJ., concur. . A claim of ineffective assistance based on trial counsel’s failure to sever Appellant’s trial from Ralph’s was raised and denied in a prior motion and is not now before this court.
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Citator
Cited By (11 total)
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McLIN v. State, 827 So. 2d 948 (Fla. 2002)…urt must evaluate the weight of the newly discovered evidence against the evidence adduced at trial to determine whether the new evidence would probably have resulted in an acquittal. See Jones v. State, 591 So. 2d 911 (Fla.1991); Kendrick v. State, 708 So. 2d 1011 (Fla. 4th DCA 1998). Thus, the trial court ivas required to determine whether the averments of Sal-dana’s affidavit were sufficient to create a probability of McLin’s acquittal, notwithstanding all of the other evidence adduced at trial against McLi…
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Cedrick Brantley v. State, 912 So. 2d 342 (Fla. 3d DCA 2005)…urts have held that evidence can be treated as newly discovered where it is “based on newly available testimony of defendants who were previously unwilling to testify.” Totta v. State, 740 So. 2d 57, 58 (Fla. 4th DCA 1999) (citing Kendrick v. State, 708 So. 2d 1011 (Fla. 4th DCA 1998)); State v. Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978) *; 15 Fla. Jur.2d Criminal Law § 2067 (2001). In the present case, Gabriel has stated in his affidavit that he was present at the time of the shooting, he has named the two ind…
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Hunter v. State, 29 So. 3d 256 (Fla. 2008)…hat the defendant had no role in the robbery and that the codefendant had not testified on the defendant’s behalf because he had been coerced by the State were sufficient to state a prima facie claim of newly discovered evidence); Kendrick v. State, 708 So. 2d 1011, 1012 (Fla. 4th DCA 1998) (stating that a codefendant’s sworn post-trial testimony that he lied to police and that he was told by police to say he got the cocaine from the defendant in order to keep his own prison time to a minimum qualified as newl…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- Hallman v. State, 371 So. 2d 482 (Fla. 1979)
- Johnson v. Singletary, 647 So. 2d 106 (Fla. 1994)
- Roberts v. State, 678 So. 2d 1232 (Fla. 1996)
- State v. Basilio Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978)
- Glendening v. State, 604 So. 2d 839 (Fla. 2d DCA 1992)
- Stone v. State, 616 So. 2d 1041 (Fla. 4th DCA 1993)
- Tondrick Hough v. State, 679 So. 2d 1300 (Fla. 5th DCA 1996)