GERALD TAYLOR, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The denial of the Rule 3.850 motion was proper because the newly discovered evidence was inherently incredible.
Defendant appealed the denial of his motion for post-conviction relief based on newly discovered evidence. The evidence was an affidavit from a fellow…
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PER CURIAM.
This is an appeal from an order denying a Rule 3.850 motion filed by defendant-appellant Gerald Taylor, asserting newly discovered evidence. Under the circumstances of this case, the denial was proper. Defendant’s newly discovered evidence claim is based on an affidavit provided by an alleged witness to the crime, a fellow inmate. The fellow inmate offered an affidavit which states that he saw the shooting which defendant was convicted. The affidavit states that both shooters wore ski masks and that the build of the shooters did not resemble the build of the defendant. The affidavit concludes that because the description of the shooters did not match the build of the defendant, the defendant could not have committed the crime.
The state properly argues, and our review of the transcript reveals, that two eyewitnesses to the crime identified defendant as one of the shooters. Both eyewitnesses had known defendant for years. Further, there was no mention by these eyewitnesses — or any suggestion by the prosecutor, the defense, or anyone at the trial — that the shooters were wearing ski masks or masks of any type. Thus, the trial court could properly reject the affidavit, for it is “inherently incredible.” See McLin v. State, 827 So. 2d 948, 955 (Fla.2002); Evans v. State, 843 So. 2d 938 (Fla. 3d DCA2003).
Affirmed.
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Nordelo v. State, 93 So. 3d 178 (Fla. 2012)…refuted by the record: the State presented overwhelming evidence of Nordelo’s guilt during the trial, including the victim’s identification of both defendants from photo lineups with one hundred percent certainty. Furthermore, under Taylor v. State, 877 So. 2d 842, 843 (Fla. 3d DCA 2004), “the trial court could properly reject the affidavit, for it is ‘inherently incredible’ ”: therein, the codefendant claims he was the driver of the white car, while the record shows that the arresting officer testified — and…
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Simpson v. State, 100 So. 3d 1258 (Fla. 4th DCA 2012)…ponse the trial court summarily denied the motion, concluding that CJ.’s affidavit was “inherently incredible,” and hence probably would not produce an acquittal on retrial. Andrews v. State, 919 So. 2d 552, 553 (Fla. 4th DCA 2005); Taylor v. State, 877 So. 2d 842, 843 (Fla. 3d DCA 2004). This appeal follows. Nordelo v. State, 93 So. 3d 178 (Fla.2012), and McLin v. State, 827 So. 2d 948 (Fla.2002), spell out the legal standards governing review of a claim for post-conviction relief based on newly discovered…
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Andrews v. State, 919 So. 2d 552 (Fla. 4th DCA 2005)…sively refuted by the record or, on their face, are inherently incredible. We conclude that the trial court was correct in determining that Jackson’s affidavit was inherently incredible and that no evidentiary hearing was necessary. Taylor v. State, 877 So. 2d 842 (Fla. 3d DCA 2004); Johnson v. State, 844 So. 2d 775 (Fla. 3d DCA 2003). Affirmed. SHAHOOD and TAYLOR, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McLIN v. State, 827 So. 2d 948 (Fla. 2002)
- J.W. v. State, 843 So. 2d 938 (Fla. 4th DCA 2003)
- Kanisky Evans v. State, 843 So. 2d 938 (Fla. 3d DCA 2003)