FRANCISCO RODRIGUEZ-MARTINEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Francisco Rodriguez-Martinez appealed the dismissal of his Rule 3.850 postconviction motion claiming newly discovered evidence of innocence based on the victim's recantation affidavit. The Florida appellate court affirmed the dismissal but without prejudice, allowing Rodriguez-Martinez to file an amended motion that properly alleges the recantation could not have been discovered through due diligence.
The court affirmed the dismissal as technically correct because Rodriguez-Martinez failed to allege that the victim's recantation could not have been previously discovered through due diligence, a required element under Rule 3.850(b)(1). However, the court affirmed without prejudice, allowing Rodriguez-Martinez thirty days from the opinion's finality to file an amended motion that properly pleads the due diligence requirement.
[1] A motion for postconviction relief based on newly discovered evidence is not untimely if the defendant alleges that the evidence could not have been previously ascertaine…
[2] A recantation of testimony may constitute newly discovered evidence for purposes of 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“[R]ecanted testimony that is alleged to constitute newly discovered evidence will mandate a new trial only if (1) the court is satisfied that the recantation is true[ ] and (2) the recanted testimony would probably render a different outcome in the proceeding.”
Establishes the two-part test for evaluating recanted testimony as newly discovered evidence
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Join FLexlaw to unlock all legal intelligenceRodriguez-Martinez was charged with lewd molestation and pleaded guilty to the lesser-included offense of child abuse in April 2006, receiving five ye…
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Francisco Rodriguez-Martinez appeals the dismissal of his motion filed under Florida Rule of Criminal Procedure 3.850. We affirm but without prejudice to permit Mr. Rodriguez-Martinez to file an amended motion.
Mr. Rodriguez-Martinez was initially charged with lewd molestation. On April 25, 2006, he entered a negotiated plea to a lesser-included offense of abuse of a child and was sentenced to five years’ probation with adjudication withheld. On August 31, 2011, the victim of the lewd molestation charge signed a sworn affidavit recanting her allegations against Mr. Rodriguez-Martinez.
On October 19, 2012, Mr. Rodriguez-Martinez filed a motion for postconviction relief, raising two grounds for relief. We affirm the denial of the second ground without comment. In his first ground for relief, Mr. Rodriguez-Martinez claimed that the victim’s affidavit proves that he was actually innocent of the charges filed against him.
The postconviction court dismissed Mr. Rodriguez-Martinez’s motion as untimely under rule 3.850(b) because his judgment and sentence became final more than six years before he filed this motion for post-conviction relief. But the victim’s recantation could amount to newly discovered evidence under rule 3.850(b)(1). See Davis v. State, 26 So.3d 519, 526 (Fla.2009) (“[R]e-*428canted testimony that is alleged to constitute newly discovered evidence will mandate a new trial only if (1) the court is satisfied that the recantation is true[ ] and (2) the recanted testimony would probably render a different outcome in the proceeding.”). Nevertheless, the court correctly dismissed the motion because Mr. Rodriguez-Martinez failed to allege the victim’s recantation could not have been previously ascertained by the exercise of ■ due diligence. See Fla. R.Crim. P. 3.850(b)(1).
We note that the two-year period during which Mr. Rodriguez-Martinez may raise a claim of newly discovered evidence under rule 3.850(b)(1) will have run during the pendency of this appeal. Accordingly, we affirm the postconviction court’s order without prejudice to permit Mr. Rodriguez-Martinez to file an amended motion in conformance with rule 3.850(b)(1) within thirty days of the date this opinion becomes final. See Davis, 26 So.3d at 527 (granting leave to amend facially insufficient claims of newly discovered evidence). The amended motion shall not be considered untimely or successive.
Affirmed without prejudice.
KELLY and SLEET, JJ., Concur.