BARRY N. JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Barry Johnson appealed the summary denial of his Rule 3.850 motion for postconviction relief following his convictions for armed robbery, burglary with assault, and attempted first-degree murder. The court affirmed the denial, finding that all claims were time-barred except the newly discovered evidence claim, which failed on the merits.
The court held that all claims in the motion were time-barred under the Rule 3.850 time limitation except for the newly discovered evidence claim. However, the newly discovered evidence claim failed on the merits because, viewing it in light of the other evidence against the defendant, it was not of such a nature that it would probably produce an acquittal on retrial.
[1] A motion for postconviction relief is timely if filed within two years of the issuance of the mandate in the direct appeal, unless an exception applies.
[2] Newly discovered evidence may overcome a statute of limitations defense in a postconviction relief proceeding.
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Join FLexlaw to unlock all legal intelligence“in view of the other evidence against the defendant, the newly discovered evidence is not of such a nature that it would probably produce an acquittal on retrial”
Establishes the legal standard for newly discovered evidence in postconviction relief—it must be of such a nature that it would probably produce an acquittal
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of armed robbery, burglary with assault, and attempted first-degree murder with a firearm. His convictions were affirmed on dire…
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This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 8.850. We affirm.
Barry N. Johnson was convicted of armed robbery, burglary with an assault, and attempted first-degree murder with a firearm. His convictions were affirmed on direct appeal. Johnson v. State, 917 So.2d 226 (Fla. 3d DCA 2005).
He filed a timely motion for postconviction relief. On appeal from a summary denial, this court affirmed in part and reversed in part. Johnson v. State, 3 So.3d 412 (Fla. 3d DCA 2009). On remand there was a denial of relief, and this court affirmed. Johnson v. State, 13 So.3d 1065 (Fla. 3d DCA 2009) (table).
Defendant-appellant Johnson filed his current rule 3.850 motion on January 25, 2010 (mailbox rule). We agree with the trial court that all of the claims are time-barred except for the claim of newly discovered evidence.*
The defendant has produced a recantation affidavit executed by Markeisha Jackson, who was a trial witness. Her affidavit states that she and her mother were threatened with jail time if she did not testify, and that her testimony (about as*629sisting the defendant in going to the hospital) was untruthful.
We have taken judicial notice of the briefs on the defendant’s direct appeal, No. 3D02-982. We agree with the trial court that in view of the other evidence against the defendant, the newly discovered evidence is not of such a nature that it would probably produce an acquittal on retrial. Jones v. State, 591 So.2d 911, 915 (Fla.1991).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- Johnson v. State, 917 So. 2d 226 (Fla. 3d DCA 2005)
- Johnson v. State, 3 So. 3d 412 (Fla. 3d DCA 2009)