THOMAS POFF, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT

Fla. 3d DCA | 2010-08-11
No. 3D10-210
Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
41 So. 3d 1062 Florida District Court of Appeal, Third District (2010) Positive Treatment
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Thomas Poff petitioned for a writ of habeas corpus seeking relief from a trial court's denial of post-conviction relief based on newly discovered evidence. The Florida District Court of Appeal affirmed the denial, finding the petition successive and procedurally barred, and rejecting Poff's substantive argument that an eyewitness's unrecanted testimony was sufficiently credible compared to an inmate's affidavit claiming he, not Poff, committed the burglary.


Holding

The petition for habeas corpus is denied on both procedural and substantive grounds. Procedurally, the successive petition raising an identical issue previously decided is barred. Substantively, the affidavit does not satisfy the second prong of the two-part Jones II test because the eyewitness's specific and credible trial testimony outweighs the generic, uncredible assertion in the inmate's affidavit, and the evidence would not probably produce an acquittal on retrial.


Headnotes

[1] A successive habeas petition raising the same issue previously decided by the court is procedurally barred.

[2] A defendant is not automatically entitled to an evidentiary hearing on a motion asserting newly discovered evidence; the determination must be made on a case-by-case basi…

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Key Quotes

“A successive habeas petition that raises the same issue is procedurally barred.”

Establishes the procedural bar for successive petitions raising identical issues

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Facts & Procedural History

Poff was convicted of burglary based on testimony from an eyewitness who observed Poff and co-defendants burglarizing a house over several minutes and…

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Opinion of the Court
SUAREZ, J.

SUAREZ, J.

Defendant petitions this Court for a writ of habeas corpus requesting relief from this Court’s prior affirmance of a trial court order denying his request for post-conviction relief alleging newly discovered evidence. Poff v. State, 20 So.3d 858 (Fla. 3d DCA 2009). We deny the petition on both procedural and substantive grounds.

First, Poffs present petition is successive. Poff raised the identical issue in a prior post-conviction relief claim, which this Court affirmed without opinion.1 A successive habeas petition that raises the same issue is procedurally barred. See Phillips v. State, 894 So.2d 28 (Fla.2004); Moss v. Singletary, 705 So.2d 947 (Fla. 1st DCA 1998).

Second, we address Poffs substantive claim that this Court’s prior decision affirming the trial court’s denial of his motion for post-conviction relief based on allegations of “newly discovered evidence” *1064conflicts with this Court’s subsequent decision in Hernandez v. State, 20 So.3d 417 (Fla. 3d DCA 2009). We find no conflict, and additionally find that the facts and legal issues raised in Hernandez are unrelated to those raised by Poff.

In Hernandez, the sole witness who identified the defendant at trial as a perpetrator of the crime recanted his testimony some twenty-five years later. This Court ruled that Hernandez was entitled to an evidentiary hearing and reversed the summary denial of his motion to withdraw his plea. Id. at 419. In Poff, an eyewitness to the crime testified that he watched Poff and his co-defendants, over the course of several minutes, burglarize a house next door to where he was staying. The eyewitness testified that he recognized Poff as someone his girlfriend had socialized with, and positively identified Poff as one of the perpetrators in a photo lineup and also in court. As well, the eyewitness has not recanted his testimony. Poff has produced an affidavit from a fellow inmate, who was not a co-defendant, stating that the inmate, not Poff, was involved in the burglary.

Where there is conflicting evidence of the defendant’s guilt, it is sometimes necessary for the trial court to evaluate the weight of the newly discovered evidence to determine whether its introduction at trial would probably have resulted in an acquittal. See Jones v. State, 591 So.2d 911, 915-16 (Fla.1991) (Jones I). Often, this analysis will require an eviden-tiary hearing. See, e.g., Roberts v. State, 678 So.2d 1232 (Fla.1996). A defendant is not automatically entitled to an evidentiary hearing, however, on filing a motion asserting newly discovered evidence. See Johnson v. Singletary, 647 So.2d 106 (Fla. 1994) (holding that such a determination must be made on case-by-case basis).

A defendant must meet two requirements to obtain a new trial based on newly discovered evidence. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must also appear that neither the defendant nor defense counsel could have known of such evidence by the use of diligence. See Davis v. State, 26 So.3d 519, 526 (Fla.2009) (citing to Jones v. State, 709 So.2d 512, 521 (Fla.1998) (Jones II)); Jones I, 591 So.2d at 915 (Fla.1991). Second, the newly discovered evidence must be of a nature that it would probably produce an acquittal on retrial or yield a less severe sentence. Jones II, 709 So.2d at 521. Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). In applying this two-prong test, the post-conviction trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Jones I, 591 So.2d at 916.

The trial judge correctly concluded that Poff s claim of “newly discovered evidence” does not meet the second, critical requirement of the two-part test established for newly discovered evidence in Jones II. The trial court weighed the specific testimony of the eyewitness against the generic assertions made in the “newly discovered evidence” and concluded that the confession of the inmate lacked credibility and would probably not change the result for Poff on retrial. See Jones II, 709 So.2d at 521; Hunter v. State, 29 So.3d 256 (Fla.2008) (holding that trial court properly denied evidentiary hearing upon considering that even if defendant sufficiently alleged his claim and that the evidence properly qualified as newly discover*1065ed evidence, the evidence was not of such a nature that it would probably produce an acquittal on retrial, where other witnesses testified as to the same matters); Hough v. State, 679 So.2d 1300 (Fla. 5th DCA 1996) (holding that a hearing was unnecessary on an affidavit stating that someone else committed the crime, where appellant had been identified as perpetrator by victim as well as by other codefendant); Stone v. State, 616 So.2d 1041 (Fla. 4th DCA 1993) (affirming denial of rule 3.850 motion based on newly discovered evidence after hearing in which trial court determined affiant lacked credibility).

Petition for Writ of Habeas Corpus denied.

SHEPHERD, J.,

concurring.

I join in the decision to deny the petition in this case. However, I find it sufficient to deny the petition solely on the ground the petition is successive. See PDK Labs., Inc. v. U.S.D.E.A., 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J. concurring).

Concurrence
SHEPHERD, J.,

SHEPHERD, J.,

concurring.

I join in the decision to deny the petition in this case. However, I find it sufficient to deny the petition solely on the ground the petition is successive. See PDK Labs., Inc. v. U.S.D.E.A., 362 F. 3d 786, 799 (D.C.Cir.2004) (Roberts, J. concurring).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Floyd v. State, 202 So. 3d 137 (Fla. 2d DCA 2016)
    …ction court. We are compelled to conclude that the postconviction court failed to make a proper evaluation of the second prong of Johnson. Although an evidentiary hearing is not a prerequisite in making this determination, see, e.g., Poff v. State, 41 So. 3d 1062, 1064 (Fla. 3d DCA 2010), “an eviden-tiary hearing is the general rule rather than the exception,” Rolack v. State, 93 So. 3d 450, 452 (Fla. 3d DCA 2012). The court in Barrow remanded for an eviden-tiary hearing in order to resolve credibility issue…
  • Garrick John v. State, 98 So. 3d 1257 (Fla. 3d DCA 2012)
    …he newly-discovered evidence and the evidence which was introduced at the trial. However, motions for postconviction relief must be evaluated on a case-by-case basis, and an evidentiary hearing is not required in every case. See e.g., Poff v. State, 41 So. 3d 1062 (Fla. Bd DCA 2010); Williams v. State, 876 So. 2d 1234 (Fla. 4th DCA 2004); Hough v. State, 679 So. 2d 1300 (Fla. 5th DCA 1996). This case presents just such a circumstance. Given the overwhelming nature of the evidence against Garrick John; the his…
  • D'Andre Rolack v. State, 93 So. 3d 450 (Fla. 3d DCA 2012)
    …al and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. Although an evidentiary hearing is not automatically required before making this determination, see e.g., Poff v. State, 41 So. 3d 1062 (Fla. 3d DCA 2010); Andrews v. State, 919 So. 2d 552 (Fla. 4th DCA 2005); Williams v. State, 876 So. 2d 1234 (Fla. 4th DCA 2004), an evidentiary hearing is the general rule rather than the exception. This is especially true in the case of recanted t…

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