D'ANDRE ROLACK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2012-07-18
No. 3D11-2062
Before ROTHENBERG, SALTER and EMAS, JJ.
93 So. 3d 450 Florida District Court of Appeal, Third District (2012) Positive Treatment
Cited by 2 cases

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Holding

The court held that the trial court erred in summarily denying post-conviction relief based on recanted testimony without proper evaluation or an evidentiary hearing.


Headnotes

[1] Evidence is not newly-discovered if it was known to the defense at the time of trial, even if the witness was not called to testify.

[2] To qualify as newly-discovered evidence, the evidence must have been unknown to the trial court, the party, or counsel at the time of trial, and could not have been disco…

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Facts & Procedural History

Appellant sought post-conviction relief based on affidavits from two witnesses, claiming newly-discovered evidence. The trial court denied the motion …

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Opinion of the Court
EMAS, J.

EMAS, J.

Appellant, D’Andre Rolack, appeals the trial court’s summary denial of his motion for post-conviction relief. We affirm in part and reverse in part.

Rolack’s motion was based upon affidavits from two witnesses: Joy Battle and Johnny Darling. Rolack asserted in his motion that both affidavits constituted newly-discovered evidence1 and that the *452nature of this evidence was such that it would probably produce an acquittal at a new trial. The trial court denied the motion without an evidentiary hearing.

We hold the trial court correctly determined the affidavit and proffered testimony of Joy Battle was not “newly-discovered,” as Joy Battle and her testimony were concededly known to the defense at the time of trial, but she was not called to testify. To qualify as newly-discovered, the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.” Jones v. State, 709 So.2d 512, 521 (Fla.1998).

With regard to the recanted testimony of Johnny Darling and his proffered testimony at a new trial, the trial court determined that, even though it was newly-discovered, it did not meet the second prong of Jones, which requires a defendant to establish that the evidence is “of such a nature that it would probably produce an acquittal upon retrial.” Id. In reaching such a conclusion, a trial court is required to “consider all newly discovered evidence which would be admissible” at trial 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 testimony, because the trial court is obligated to assess the weight and credibility of the witness’ new testimony. McLin v. State, 827 So.2d 948, 955 (Fla.2002). An order which summarily denies a motion for postconviction relief must demonstrate that the court conducted the requisite evaluation, including attaching those portions of the record which conclusively demonstrate the defendant is entitled to no relief. Id. at 955-56; Fla. R.Crim. P. 3.850(d) (providing “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing”); Fla. R.App. P. 9.141(b)(2)(D) (providing “[o]n appeal from the [summary] denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief’).

The order summarily denying relief failed to meet this requirement; it indicated, without evaluation and without record attachments, that Darling’s recanted testimony was inconsistent with the other testimony and other evidence adduced at trial. The trial court then concluded Rolack had failed to establish the evidence is of such a nature that it would probably produce an acquittal at a new trial.2

*453Because the order fails to conclusively demonstrate the appellant is entitled to no relief, we reverse that portion of the order which denied Rolack’s motion for postcon-viction relief predicated upon the recanted testimony of Johnny Darling. On remand, the trial court shall either enter a new order which includes those portions of the record conclusively establishing Rolack is entitled to no relief, or hold an evidentiary hearing on the portion of Rolack’s claim which was predicated upon the recanted testimony of Johnny Darling.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.


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Citator

Cited By

  • Floyd v. State, 202 So. 3d 137 (Fla. 2d DCA 2016)
    …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 issues. 940 So. 2d at 1236. The court’s reasoning in Riechmann was based on information gathered at the evidentiary hearing. 966 So. 2d…

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