JOSEPH MICHAEL BOULE, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the summary denial of Boule's Rule 3.850 ineffective assistance of counsel motion and remanded for the trial court to allow him to amend his pleading to properly allege that a video constitutes newly discovered evidence under the applicable legal standard.
A Rule 3.850 motion alleging newly discovered evidence must specifically allege when the evidence was discovered, that it was unknown at trial, and that it could not have been discovered through diligent investigation.
[1] A Rule 3.850 motion invoking the newly discovered evidence exception to the two-year filing deadline must allege: (1) when the evidence was discovered; (2) that it was un…
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Join FLexlaw to unlock all legal intelligence“In order for evidence to be considered 'newly discovered,' it must have been unknown at the time of trial and it must appear that neither the defendant nor his counsel could have known of it by the exercise of diligence.”
Defining the legal standard for newly discovered evidence under Florida law.
Boule appealed the summary denial of his Rule 3.850 motion filed more than two years after his judgment became final, claiming his trial counsel was i…
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Appellant, Joseph Boule, appeals the summary denial of his rule 3.850 motion in which he alleges that his trial counsel was ineffective in failing to discover a video tape which contradicted the testimony of the officer who arrested him. Although Boule’s motion was filed more than two years after his judgment and sentence became final, Boule is relying on one of the exceptions to the two-year rule by alleging that the video tape is newly discovered evidence. However, it is apparent from Boule’s motion that his claim is insufficiently pled because the motion does not indicate that the video tape constitutes newly discovered evidence. In order for evidence to be considered “newly discovered,” it must have been unknown at the time of trial and it must appear that neither the defendant nor his counsel could have known of it by the exercise of diligence. See Jones v. State, 591 So.2d 911, 916 (Fla.1991) (defining newly discovered evidence). Here, Boule has failed to allege when the video was discovered, that it was unknown to the parties at the time he entered his plea, and that the video could not have been discovered with the exercise of diligence. If Boule, in good faith, can make those allegations he should be given an opportunity to do so. - See Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we reverse and remand for the trial court to strike Boule’s motion with leave to amend his claim in a specified time consistent with the parameters identified in Spera., See Parsons v. State, 981 So.2d 1249, 1250 (Fla. 5th DCA 2008).
REVERSED and REMANDED with Instructions.
GRIFFIN, EVANDER and JACOBUS, JJ., concur.
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Citator
Cited By
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Garrett v. State, 111 So. 3d 952 (Fla. 5th DCA 2013)…07). Accordingly, we reverse the trial court’s summary denial of claim five, and remand with instructions to strike this claim with leave to amend within a specified time consistent with the parameters identified in Spera. See, e.g., Boule v. State, 86 So. 3d 1185, 1186 (Fla. 5th DCA 2012); Parsons v. State, 981 So. 2d 1249, 1250 (Fla. 5th DCA 2008). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. PALMER, COHEN and BERGER, JJ., concur.…
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Edwards v. State, 259 So. 3d 998 (Fla. 5th DCA 2018)
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Mikael T. Cuyler v. State (Fla. 5th DCA 2019)
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- Parsons v. State, 981 So. 2d 1249 (Fla. 5th DCA 2008)