THEODORE STEPHENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that recantation evidence requires an evidentiary hearing unless inherently incredible or immaterial.
Appellant sought postconviction relief based on a witness's recantation. The trial court summarily denied the motion without a hearing.…
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PER CURIAM.
The appellant challenges the summary denial of his motion for posteonviction relief, through which he sought a new trial on the ground that one of the state’s witnesses has since recanted her testimony. Because the trial court did not conduct an evidentiary hearing, we reverse.
Recantation evidence is considered to be a type of newly discovered evidence, and therefore, the same test applies to recantation evidence as to other types of newly discovered evidence. See Murrah v. State, 773 So. 2d 622, 623 (Fla. 1st DCA 2000). To be newly discovered, evidence must be such that neither the appellant, his counsel, nor the trial court could have discovered the facts in the report at the time of trial through the exercise of due diligence, and must be such that it would probably produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla.1998), cert. denied, Jones v. State, 523 U.S. 1040, 118 S.Ct. 1350, 140 L.Ed.2d 499 (1998). These determinations require an evidentiary hearing in the context of recantations, unless the affidavit is inherently incredible or obviously immaterial to the verdict. See Robinson v. State, 736 So. 2d 93 (Fla. 4th DCA 1999); Venuto v. State, 615 So. 2d 255 (Fla. 3d DCA 1993). This affidavit is neither. Therefore, the appellant is entitled to an evidentiary hearing. Accordingly, we hereby REVERSE the trial court’s order and REMAND for an evidentiary hearing.
BARFIELD, MINER, and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Davis v. State, 26 So. 3d 519 (Fla. 2009)…e and meet the due diligence and probability prongs of Jones II usually requires an evidentiary hearing to evaluate credibility unless the affidavit is inherently incredible or obviously immaterial to the verdict and sentence. See Stephens v. State, 829 So. 2d 945 (Fla. 1st DCA 2002) (citing Robinson v. State, 736 So. 2d 93, 93 (Fla. 4th DCA 1999); Venuto v. State, 615 So. 2d 255, 256 (Fla. 3d DCA 1993)). [*527] Facial Insufficiency The postconviction trial court denied the request for an evidentiary hearing…
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Burns v. State, 858 So. 2d 1229 (Fla. 1st DCA 2003)…ndant acknowledging that this co-defendant lied at trial in implicating the appellant as a principal in an arson as having paid the codefendant to commit the arson. Recantation evidence is a type of newly discovered evidence. See Stephens v. State, 829 So. 2d 945, 945 (Fla. 1st DCA 2002). To be newly discovered, the evidence must be such that neither the appellant, his counsel, nor the trial court could have discovered the facts in the affidavit at the time of trial through the exercise of due diligence, and…
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Johnson v. State, 936 So. 2d 1196 (Fla. 1st DCA 2006)…court needs to assess the credibility of the new evidence. Murrah v. State, 773 So. 2d 622, 623 (Fla. 1st DCA 2000). The exception to this rule is when the affidavit is inherently incredible or obviously immaterial to the verdict. Stephens v. State, 829 So. 2d 945 (Fla. 1st DCA 2002). The deposition in this case does not fall in either category. Therefore, it was error for the trial court to deny appellant’s claim without an eviden-tiary hearing. Accordingly, we reverse the denial of appellant’s claim of newl…
Previewing 3 of 16 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, 709 So. 2d 512 (Fla. 1998)
- Robinson v. State, 736 So. 2d 93 (Fla. 4th DCA 1999)
- Murrah v. State, 773 So. 2d 622 (Fla. 1st DCA 2000)
- Caterpillar Inc. v. Int'l Union, 523 U.S. 1015 (U.S. 1998)
- Venuto v. State, 615 So. 2d 255 (Fla. 3d DCA 1993)
- United States ex rel. Rabushka v. Crane Co., 523 U.S. 1040 (U.S. 1998)
- E. J. Co. v. Sandvik Aktiebolag, 523 U.S. 1040 (U.S. 1998)