CHARLES F. AURITT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal reversed a trial court's dismissal of an inmate's Rule 3.850 postconviction motion attacking his conviction for lewd or lascivious conduct based on newly discovered evidence (victim recantation). The court held that Rule 3.850 motions may proceed regardless of whether the movant remains in custody for the challenged conviction.
Rule 3.850 is an appropriate vehicle for postconviction relief regardless of whether the movant is in custody for the challenged conviction. A movant need not show that the sentence currently being served was enhanced by the conviction being challenged. Therefore, the trial court erred in dismissing the motion based on lack of jurisdiction, and an evidentiary hearing should have been held to determine the merit of the newly discovered evidence claim.
[1] A motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 is an appropriate vehicle regardless of whether the movant is currently in custody.
[2] A movant seeking postconviction relief is not required to allege that a prior conviction was used to enhance a current sentence if the movant is no longer in custody for…
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Join FLexlaw to unlock all legal intelligence“Rule 3.850 is an appropriate vehicle to seek postconviction relief regardless of whether the movant is 'in custody.'”
Establishes that custody requirement does not apply to Rule 3.850 motions, overruling prior restrictive interpretation.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of lewd or lascivious conduct in the presence of a child under sixteen pursuant to a nolo contendere plea and was required to …
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PER CURIAM.
The appellant challenges the trial court’s order denying his Florida Rule of Criminal Procedure 3.850 motion. Pursuant to a nolo contendere plea, the appellant was convicted of lewd or lascivious conduct in the presence of a child under sixteen and was required to register as a sex offender. The appellant served his sentence, but was again incarcerated for failure to re-register within 48 hours of an address change based on the foregoing conviction. He filed the present motion attacking his original conviction on grounds of newly discovered evidence. The lower tribunal dismissed the motion reasoning that in light of McArthur v. State, 597 So. 2d 406 (Fla. 1st DCA 1992), citing Wall v. State, 525 So. 2d 486, 487 (Fla. 1st DCA 1988), it lacked jurisdiction to consider the motion’s merits since the appellant was no longer in custody for the challenged conviction and did not allege that the conviction was used to enhance his current sentence.
Rule 3.850 is an appropriate vehicle to seek postconviction relief regardless of whether the movant is “in custody.” See Wood v. State, 750 So. 2d 592 (Fla.1999). Therefore, the appellant was not required to show he was “in custody” by alleging that the sentence he is now serving was enhanced by the conviction he seeks to have set aside. Thus, the trial court erred in dismissing the appellant’s motion.
An evidentiary hearing should have been held to determine whether the appellant’s newly discovered evidence claim has merit. He relies on the recantation of testimony by the victim and her grandmother to support his claim. A recantation of accusations of sexual abuse may qualify as newly discovered evidence. See Johnson v. State, 936 So. 2d 1196, 1197 (Fla. 1st DCA 2006). Because the recantations in the instant case are not inhere ently incredible as a matter of a law and are material to the appellant’s guilt, an evidentiary hearing is required to determine whether relief should be granted. See Stephens v. State, 829 So. 2d 945 (Fla. 1st DCA 2002). Accordingly, we reverse and remand for an evidentiary hearing.
REVERSED AND REMANDED.
WEBSTER, LEWIS, and THOMAS, JJ., concur.
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Turner v. State, 120 So. 3d 187 (Fla. 2d DCA 2013)…006) (“In Wood, this Court eliminated the requirement in rule 3.850 that the defendant be in custody_”). Thus, “[r]ule 3.850 is an appropriate vehicle to seek postconviction relief regardless of whether the movant is ‘in custody.’ ” Auritt v. State, 958 So. 2d 1052, 1053 (Fla. 1st DCA 2007). We reverse the dismissal of Turner’s motion and remand for the postconviction court to consider the motion on the merits. WALLACE and CRENSHAW, JJ., Concur.…
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Good v. State, 200 So. 3d 185 (Fla. 5th DCA 2016)…ppeals the summary denial of his Florida Rule of Criminal Procedure 3.850(b)(1) motion alleging newly discovered evidence. Although we agree with Good that the trial court’s summary denial order fails to refute his claim, see, e.g., Auritt v. State, 958 So. 2d 1052, 1053 (Fla. 1st DCA 2007), because the claim is based on the victim’s recantation and Good failed to attach a copy of the victim’s sworn affidavit1 to his motion or provide an explanation as to why the required affidavit could not be obtained, see F…
Authorities Cited
- Wood v. State, 750 So. 2d 592 (Fla. 1999)
- Stephens v. State, 829 So. 2d 945 (Fla. 1st DCA 2002)
- Bennie McARTHUR v. State, 597 So. 2d 406 (Fla. 1st DCA 1992)
- Wall v. State, 525 So. 2d 486 (Fla. 1st DCA 1988)
- Johnson v. State, 936 So. 2d 1196 (Fla. 1st DCA 2006)