JACK DONALD BURNS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jack Donald Burns challenges the denial of his Rule 8.850 motion for a new trial based on newly discovered evidence—a recantation affidavit from a co-defendant who admitted lying at trial. The court held that even though Burns knew the co-defendant was lying at trial, the actual recantation constitutes newly discovered evidence because it could not have been obtained earlier with due diligence.
The court held that the recantation affidavit is newly discovered evidence because, although the appellant knew the co-defendant was lying, he could not have obtained the co-defendant's admission of that lie earlier through the exercise of due diligence. Since the co-defendant's testimony was key to the conviction, an evidentiary hearing must be conducted.
[1] Recantation evidence is a type of newly discovered evidence.
[2] Newly discovered evidence must be such that it could not have been discovered by the defendant, counsel, or the court through due diligence at the time of trial.
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Join FLexlaw to unlock all legal intelligence“Recantation evidence is a type of newly discovered evidence.”
Establishes that a witness recantation can qualify as newly discovered evidence under Florida law
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Join FLexlaw to unlock all legal intelligenceBurns was convicted after a jury trial for arson and burning to defraud an insurer. At trial, Burns presented testimony from another prisoner stating …
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[*1230] PER CURIAM.
The appellant challenges the trial court’s summary denial of his rule 8.850 motion. The appellant was convicted after a jury trial for arson and burning to defraud an insurer. The appellant claims that he has newly discovered evidence, which if known at trial would probably have resulted in his acquittal, in the form of a new affidavit by a codefendant 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 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, 523 U.S. 1040, 118 S.Ct. 1350, 140 L.Ed.2d 499 (1998).
The trial court summarily denied the appellant’s claim because at trial the appellant had presented testimony by another prisoner that the appellant’s codefendant had told this other prisoner that he had been pressured to lie about the appellant’s involvement in the arson in order to cut himself a deal. The trial court reasoned that the appellant had therefore known at trial that the codefendant was lying, and thus the fact of the codefendant’s lying could not constitute newly discovered evidence. In this regard, the trial court erred.
Even though the appellant knew at trial that the codefendant was lying, the appellant could not have gotten the codefendant to admit that he was lying earlier, and thus the recantation is newly discovered evidence that could not have been obtained earlier with due diligence. See Lee v. State, 677 So. 2d 312, 314 (Fla. 1st DCA 1996); Kendrick v. State, 708 So. 2d 1011, 1012 (Fla. 4th DCA 1998); Cammarano v. State, 602 So. 2d 1369, 1371 (Fla. 5th DCA 1992).
Since the codefendant’s testimony appears to have been key in obtaining the appellant’s conviction, an evidentiary hearing is warranted. See McLin v. State, 827 So. 2d 948, 954-55 (Fla.2002); Stephens, 829 So. 2d at 945-46; Robinson v. State, 736 So. 2d 93 (Fla. 4th DCA 1999).
We accordingly reverse the summary denial and remand with instructions for the trial court to conduct an evidentiary hearing.
REVERSED.
ERVIN, BOOTH and KAHN, JJ., concur.
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Citator
Cited By (11 total)
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Davis v. State, 26 So. 3d 519 (Fla. 2009)…hat defense counsel had “years” to find the witness. See id. Regardless of the time span from the time of trial to the discovery of the new testimony, recanted testimony cannot be “discovered” until the witness chooses to recant. See Burns v. State, 858 So. 2d 1229, 1230 (Fla. 1st DCA 2003) (“Even though the appellant knew at trial that the codefendant was lying, the appellant could not have gotten the code-fendant to admit that he was lying earlier, and thus the recantation is newly discovered evidence that c…
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Archer v. State, 934 So. 2d 1187 (Fla. 2006)…defendant knew, as reflected by what the defendant claimed the facts to be, that the recanting witness was not telling the truth at the time of the trial or because the defendant took the stand to testify contrary to the witness. See Burns v. State, 858 So. 2d 1229 (Fla. 1st DCA 2003); Lee v. State, 677 So. 2d 312 (Fla. 1st DCA 1996). The appropriate question was whether Archer was or should have been aware of the existence of evidence that would demonstrate that Bonifay’s testimony was false. The evidence at…
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Tajhon Wilson v. State, 188 So. 3d 82 (Fla. 3d DCA 2016)…defendant knew, as reflected by what the defendant claimed the facts to be, that the recanting witness was not telling the truth at the time of the trial or because the defendant took the stand to testify contrary to the witness. See Burns v. State, 858 So. 2d 1229 (Fla. 1st DCA 2003); Lee v. State, 677 So. 2d 312 (Fla. 1st DCA 1996). The appropriate question was whether Archer was or should have been aware of the existence of evidence that would demonstrate that [the recanting witness’ trial] testimony was fa…
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, 709 So. 2d 512 (Fla. 1998)
- McLIN v. State, 827 So. 2d 948 (Fla. 2002)
- Robinson v. State, 736 So. 2d 93 (Fla. 4th DCA 1999)
- Stephens v. State, 829 So. 2d 945 (Fla. 1st DCA 2002)
- Kendrick v. State, 708 So. 2d 1011 (Fla. 4th DCA 1998)
- Caterpillar Inc. v. Int'l Union, 523 U.S. 1015 (U.S. 1998)
- 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)
- LEE v. State, 677 So. 2d 312 (Fla. 1st DCA 1996)
- Cammarano v. State, 602 So. 2d 1369 (Fla. 5th DCA 1992)