MARVIN D. RUSSELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Russell appealed a summary denial of his three-claim postconviction motion, arguing newly discovered evidence in the form of a victim's recantation affidavit. The Florida District Court of Appeal affirmed, holding that Russell had notice of the recantation at a 2005 probation revocation hearing and therefore failed to file his motion within the required two-year window under Florida Rule of Criminal Procedure 3.850(b)(1).
The court affirmed the summary denial of Russell's postconviction motion, holding that Russell had constructive notice of the victim's recantation at the November 2005 probation revocation hearing and therefore could have exercised due diligence to file his motion within two years of that hearing, rather than waiting over four years.
[1] A postconviction motion based on newly discovered evidence must be filed within two years of the time the new facts were or could have been discovered with the exercise o…
[2] Recantation evidence can qualify as newly discovered evidence if the allegations thereof satisfy the appropriate requirements for postconviction relief.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a claim of newly discovered evidence must be raised "within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence." Fla. R.Crim. P. 3.850(b)(1)”
Establishes the strict two-year deadline for filing newly discovered evidence claims under Florida procedure
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Join FLexlaw to unlock all legal intelligenceRussell filed a postconviction motion on July 15, 2010, claiming newly discovered evidence based on a January 20, 2010 affidavit in which the victim r…
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Marvin D. Russell appeals from an order summarily denying his three-claim postconviction motion filed on July 15, 2010, under Florida Rule of Criminal Procedure 8.850. We affirm without further comment as to claims two and three. As for claim one, we affirm but on a basis different from the one relied on by the postconviction court. See, e.g., Gillis v. State, 32 So.3d 681, 682 (Fla. 2d DCA 2010).
In his postconviction motion, Russell alleged newly discovered evidence in the form of a January 20, 2010, affidavit in which the victim recanted her original allegations. See, e.g., Roberts v. State, 678 So.2d 1232, 1235 (Fla.1996) (indicating that recantation evidence can qualify as newly discovered evidence if the allegations thereof satisfy the appropriate requirements of rule 3.850). However, a claim of newly discovered evidence must be raised “within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence.” Fla. R.Crim. P. 3.850(b)(1); see also Bolender v. State, 658 So.2d 82, 85 (Fla.1995) (noting the existence of this time limit before it was explicitly incorporated into the rule). Russell attached to his motion a portion of the transcript of his probation revocation hearing held on November 15, 2005, at which the victim’s mother (Russell’s ex-wife) testified that the victim had changed her mind about the original allegations. Russell urged in his motion that this testimony reflected what actually happened at the time of the original events. However, the testimony in 2005 was essentially the same as the assertions in the victim’s affidavit prepared in 2010. Thus, as of the date of the revocation hearing at the latest, Russell was on notice that the victim had recanted. We conclude that Russell could have exercised due diligence to file a post-conviction motion within two years of hearing this testimony, see Fla. R.Crim. P. 3.850(b)(1), rather than waiting well over four years to do so. See also Butler v. State, 946 So.2d 30, 31 (Fla. 2d DCA 2006) (noting that an allegation of recantation does not require that the movant attach supporting affidavits). Therefore, we affirm the postconviction court’s order.
Affirmed.
DAVIS and VILLANTI, JJ., Concur.
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Citator
Cited By
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Duncan v. State, 232 So. 3d 450 (Fla. 2d DCA 2017)…ston v. State, 970 So. 2d 789, 797 (Fla. 2007)). Additionally, “a claim of newly discovered evidence must be raised ‘within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence.’ ” Russell v. State, 100 So. 3d 202, 203 (Fla. 2d DCA 2012) (quoting Fla. R. Crim. P. 3.850(b)(1)). Here, there is nothing in the record to conclusively show that Mr. Duncan’s facially sufficient motion was untimely filed. Mr. Duncan filed his motion within two years of the publicati…
Authorities Cited
- Bolender v. State, 658 So. 2d 82 (Fla. 1995)
- Roberts v. State, 678 So. 2d 1232 (Fla. 1996)
- Butler v. State, 946 So. 2d 30 (Fla. 2d DCA 2006)
- Gillis v. State, 32 So. 3d 681 (Fla. 2d DCA 2010)