JORGE ZAMARIPPA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2012-11-07
No. 2D12-99
ALTENBERND and BLACK, JJ., Concur.
100 So. 3d 746 Florida District Court of Appeal, Second District (2012) Positive Treatment
Cited by 2 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

Jorge Zamarippa appeals the summary denial of his motion for postconviction relief based on newly discovered evidence regarding the unreliability of comparative bullet-lead analysis used in his murder conviction. The court reverses and remands for an evidentiary hearing to determine whether the evidence was timely discovered and whether it would probably produce an acquittal.


Holding

The court reversed and remanded because the record does not conclusively show the motion was untimely filed, and evidence regarding the unreliability of comparative bullet-lead analysis (referencing a 2004 National Academy of Sciences report) may qualify as newly discovered evidence. The postconviction court must hold an evidentiary hearing to determine timeliness and whether the evidence would probably produce an acquittal, and must address the Brady claim.


Headnotes

[1] A report by the National Academy of Sciences on the unreliability of comparative bullet-lead analysis may qualify as newly discovered evidence for purposes of postconvict…

[2] A motion for postconviction relief based on newly discovered evidence is timely if filed within two years of the time when the evidence could have been discovered through…

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

Key Quotes

“the 2007 article in the Washington Post refers to a 2004 report by the National Academy of Sciences on comparative bullet-lead analysis, and this court has determined that the 2004 report may qualify as newly discovered evidence”

Establishes the legal basis for considering the evidence potentially newly discovered and overcoming the trial court's summary denial

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Zamarippa was convicted in June 1998 of first-degree murder and three counts of attempted first-degree murder arising from a July 1997 drive-by shooti…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
KHOUZAM, Judge.

KHOUZAM, Judge.

Jorge Zamarippa appeals the summary denial of his motion for postconviction relief in which he raised a claim of newly discovered evidence pursuant to Florida Rule of Criminal Procedure 3.850(b)(1). We reverse and remand for an evidentiary hearing.

As a result of his involvement in a drive-by shooting in July of 1997, Zamarippa was convicted of one count of first-degree murder and three counts of attempted first-degree murder on June 19, 1998. He was sentenced to life without parole on the murder count and 259 months in prison on the remaining counts, to run concurrently. This court affirmed on direct appeal on June 16, 1999. See Zamarippo v. State, 737 So.2d 1095 (Fla. 2d DCA 1999) (table decision). Zamarippa has filed two previous motions for postconviction relief, a motion to correct illegal sentence, and a motion to compel the clerk to unseal juror reports — all of which were denied.

*747Zamarippa filed his current motion on December 7, 2011, arguing that he recently discovered evidence showing that the comparative bullet-lead analysis introduced at his trial was not reliable. He asserted that this evidence would have resulted in an acquittal. He also claimed that the State failed to disclose this evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He attached to his motion an article published in the Washington Post on November 18, 2007, which details the controversy surrounding comparative bullet-lead analysis.1 The court denied the motion on December 12, 2011, finding that Zamarippa’s motion was untimely and that the article did not constitute newly discovered evidence.

However, the 2007 article in the Washington Post refers to a 2004 report by the National Academy of Sciences on comparative bullet-lead analysis, and this court has determined that the 2004 report may qualify as newly discovered evidence. See Murphy v. State, 24 So.3d 1220, 1222 (Fla. 2d DCA 2009).2 Further, the record does not conclusively show that Zamarippa’s motion was untimely filed. Cf. id. at 1222 n. 2 (“[W]e express no opinion concerning whether [the appellant’s) claims of newly discovered evidence based on the unreliability of comparative bullet-lead analysis were actually ‘filed within two years of the time when the evidence upon which avoidance of the time limit was based could have been discovered through the exercise of due diligence.’” (quoting Bolender v. State, 658 So.2d 82, 85 (Fla.1995))). We reverse and remand for the postconviction court to hold an evidentiary hearing to determine whether Zamarippa’s motion was timely under rule 3.850(b)(1) and, if so, whether the newly discovered evidence on comparative bullet-lead analysis would probably produce an acquittal on retrial, see Padron v. State, 769 So.2d 432, 433 (Fla. 2d DCA 2000). Also, as the postcon-viction court’s order did not address Za-marippa’s Brady claim, the court should address this claim on remand.

Reversed and remanded for further proceedings.

ALTENBERND and BLACK, JJ., Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Duncan v. State, 232 So. 3d 450 (Fla. 2d DCA 2017)
    …008) (holding that scientific evidence to the form of medical studies, reports, and articles could be considered newly discovered evidence), cited with approval in Smith v. State, 23 So. 3d 1277, 1278 (Fla. 2d DCA 2010); see also Zamarippa v. State, 100 So. 3d 746, 747 (Fla. 2d DCA 2012) (reversing and remanding for an evidentiary hearing because a scientific organization’s report on comparative bullet-lead analysis could constitute newly discovered evidence); Murphy v. State, 24 So. 3d 1220, 1222 (Fla. 2d DC…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw