RODOLFO G. ORTIZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the newly discovered evidence of being kicked in the face by police officers was insufficient to likely produce an acquittal on retrial for resisting an officer.
Rodolfo Ortiz appealed the denial of his habeas corpus petition, claiming newly discovered evidence showed he was innocent of resisting an officer. He…
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PER CURIAM.
Rodolfo Ortiz appeals the denial of his petition for a writ of habeas corpus on the grounds that, based upon newly discovered evidence, he is actually innocent of the crime of resisting an officer. Claims of newly discovered evidence are properly raised on a motion to vacate, set aside, or correct a sentence pursuant to Fla. R.Crim. P. 3.850, see Roberts v. State, 678 So. 2d 1232 (Fla.1996), and are not subject to the usual two-year time limit of R. 3.850(b). Regan v. State, 787 So. 2d 265 (Fla. 1st DCA 2001). We therefore treat this as an appeal from a timely filed R. 3.850 motion, rather than from a denied habeas petition.
Mr. Ortiz claims that he first learned in 2000, three years after his conviction, that he was kicked in the face by police officers and taken to Jackson Memorial Hospital (JMH)1 with a lacerated and bloody lip. He further claims that such “newly discovered” evidence is proof that he did not resist a police officer.2 Even assuming arguendo that we accept the appellant’s assertion that he was unaware he was kicked in the face and taken to the hospital for stitches until reading his treatment record years after the incident, we cannot accept this assertion as proof that he would likely be acquitted on retrial. See Blanco v. State, 702 So. 2d 1250 (Fla.1997) (noting that in order to vacate a conviction under R. 3.850, newly diseover-ed evidence must be of such nature that it would probably produce acquittal on retrial).
Affirmed.
. The hospital record shows that Ortiz was brought to JMH by the arresting officers to stitch and dress his cut. The treatment record indicates that he had no other medical problems and that he personally told the nurses that he was kicked in the face.
. In fact, evidence of a struggle probably bolsters the state's case against him.
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Drinmard Fudge v. State, 45 So. 3d 982 (Fla. 3d DCA 2010)…efendant simply walked into the store while the holdup was going on. The appropriate procedure for a claim of newly discovered evidence is to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. See Ortiz v. State, 895 So. 2d 1100, 1101 (Fla. 3d DCA 2004); Brantley v. State, 912 So. 2d 342 (Fla. 3d DCA 2005). As the mandate in the defendant’s direct appeal issued on March 6, 2009, the defendant is still within the time period for a Rule 3.850 motion. Accordingly we deny relie…
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Goins v. State, 918 So. 2d 332 (Fla. 1st DCA 2005)…umstances and that he could not have discovered the facts earlier. A collateral attack on a criminal conviction based on newly discovered evidence must be made by a motion for postconvic [*333] tion relief filed in the trial court. Ortiz v. State, 895 So. 2d 1100 (Fla. 3d DCA 2004). Accordingly, the instant petition is denied without prejudice to Goins’ right to pursue that remedy. PETITION DENIED. DAVIS, BROWNING and LEWIS, JJ., concur.…
Authorities Cited
- Blanco v. State, 702 So. 2d 1250 (Fla. 1997)
- Regan v. State, 787 So. 2d 265 (Fla. 1st DCA 2001)
- Roberts v. State, 678 So. 2d 1232 (Fla. 1996)