DOMINICK HARRIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Dominick Harris appeals the summary denial of his Rule 3.850 motion for postconviction relief based on newly-discovered evidence. The appellate court reverses and remands, holding that an evidentiary hearing is generally required to resolve newly-discovered evidence claims unless the record conclusively refutes the allegations or the evidence is inherently incredible.
The court reversed and remanded, holding that absent a record conclusively refuting the allegations in the affidavit or a finding that the newly-discovered evidence is inherently incredible, an evidentiary hearing is generally required to resolve claims of newly-discovered evidence, particularly when resolution requires the trial court to make credibility determinations.
[1] Newly-discovered evidence must be of such a nature that it would probably produce an acquittal on retrial to entitle a defendant to relief.
[2] A claim of newly-discovered evidence requires an evidentiary hearing unless the record conclusively refutes the allegations or the evidence is inherently incredible.
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Join FLexlaw to unlock all legal intelligence“Absent a record that conclusively refutes the allegations in the affidavit, or a finding that the newly-discovered evidence is inherently incredible, an evidentiary hearing generally will be required to resolve claims of newly-discovered evidence, especially when resolution of those claims necessarily requires the trial court to make credibility determinations.”
Establishes the legal standard for reviewing summary denials of newly-discovered evidence motions
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Join FLexlaw to unlock all legal intelligenceHarris was convicted in 1997 of armed kidnapping, sexual battery, armed robbery, and armed carjacking, and sentenced to life in prison. In December 20…
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Appellant, Dominick Harris, appeals the trial court’s summary denial of his rule 3.850 motion for postconviction relief, which is based upon a claim of newly-discovered evidence. We reverse.
In 1996, Harris was charged with armed kidnapping, sexual battery, armed robbery, and armed carjacking. Following a trial in 1997, Harris was convicted of those charges and sentenced to life in prison. His convictions and sentences were affirmed per curiam on direct appeal. See Harris v. State, 709 So.2d 650 (Fla. 3d DCA 1998). Harris thereafter filed several postconviction motions attacking his convictions and sentences. Those previous motions were denied and affirmed on appeal.
On December 29, 2011, Harris filed the instant motion for postconviction relief, alleging newly-discovered evidence. In his motion, Harris alleged that a previously unknown witness, Wilbert Pace, had come forward and provided an affidavit containing information that, Harris contended, would probably produce an acquittal at a new trial. Harris alleged that neither he nor his counsel knew of this newly-discovered evidence nor could have known of it in the exercise of diligence.1 Attached to the motion was Pace’s two-page affidavit, signed and sworn to in December 2011, setting forth Pace’s knowledge of, and involvement in, the events which occurred more than fifteen years earlier.
The trial court denied the motion without an evidentiary hearing, adopting the State’s argument that “the handwritten notarized statement [of Pace] may be newly produced, but the information contained therein, even if true, is merely a repeat of the defendant’s trial testimony that was rejected by the jury in 1997.”2 While it is true that some of Pace’s allegations are corroborative of what Harris himself testified to during his trial, other portions of the affidavit are neither merely corroborative nor cumulative, but raise new and significant issues. In fact, as the State conceded, one portion of Pace’s affidavit identified another individual as the perpetrator of the crime. The State argued that this portion of Pace’s affidavit is not credible. However, there is nothing in the record provided which renders this portion of Pace’s statement inherently incredible, nor did the trial court make such a finding in its order.
The trial court denied the motion on an alternative ground: that this evidence was or should have been known to *46defendant or his counsel. The trial court bases this conclusion on Pace’s affidavit, in which he claims that, on the evening in question, and at the scene of Harris’ arrest, Pace (together with other witnesses on the scene) spoke with the police, told the police what actually happened, and gave the police his name and address. Pace alleged that “all my info was in the [police] reports and records.” The trial court concluded:
[I]f, as Pace claims in his affidavit, he and other witnesses corroborated Harris’ claim on the evening of his arrest, nothing about this information is new. The police reports, as well as the Witness Lists, disclosed to the defense in pretrial discovery reveal the names of all the witnesses found inside and outside the store when police arrived, including names of the defendant’s friends present when he was identified by the victims and arrested by police. Nowhere is Wilbert Pace’s name found, even though he alleges in his affidavit that he was there providing information and cooperated with police. If, indeed, all this happened as Pace alleges, and if others witnessed it, too, the defendant and his counsel knew or should have known of it or of the existence of any alleged notes detailing their interactions.
However, there is nothing in the record provided to this Court that reflects that Pace’s name, address, observations or statements were in fact provided to defense counsel in discovery, and the State in its response to Harris’s motion appears to concede as much. Moreover, Harris has alleged that neither he nor his attorney knew of Pace’s existence (or the substance of his testimony) prior to trial. The State did not provide, and the trial court did not attach, any record evidence that that this information was disclosed in discovery or included in any police reports. While this exposes a clear discrepancy and may well impact the credibility of Pace’s proffered testimony (and therefore the quality of his alleged exculpatory evidence), such determinations are ordinarily made following an evidentiary hearing.
Absent a record that conclusively refutes the allegations in the affidavit,3 or a finding that the newly-discovered evidence is inherently incredible, an evidentiary hearing generally will be required to resolve claims of newly-discovered evidence, especially when resolution of those claims necessarily requires the trial court to make credibility determinations. See, e.g., McLin v. State, 827 So.2d 948, 955-57 (Fla.2002); Jones v. State, 591 So.2d 911, 916 (Fla.1991).
*47We therefore reverse and remand this cause to the trial court for an order which, together with record attachments, shows conclusively that Harris is entitled to no relief, or for a further evidentiary hearing.4 We express no opinion on the ultimate merits of Harris’ motion, or the veracity of the purported newly-discovered evidence.
Reversed and remanded for proceedings consistent with this opinion.
SALTER, J., concurs.
(dissenting).
I would affirm on the authority of John v. State, 98 So.3d 1257 (Fla. 3d DCA 2012).
SCHWARTZ, Senior Judge
(dissenting).
I would affirm on the authority of John v. State, 98 So. 3d 1257 (Fla. 3d DCA 2012).
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Tajhon Wilson v. State, 188 So. 3d 82 (Fla. 3d DCA 2016)…victim of, the robbery. In short, there is nothing in the record provided that conclusively establishes that Defendant or his counsel either knew of Cantees or in the exercise of due diligence should have known of the witness. See Harris v. State, 128 So. 3d 44 (Fla. 3d DCA 2012). Because this is an appeal from a summary denial of the motion, we must accept the well-pleaded allegations in the motion and the affidavit as true. See Fla.R.App. P. 9.141(b)(2)(D) (providing “[o]n appeal from the [summary] denia…
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Lamb v. State, 212 So. 3d 1108 (Fla. 5th DCA 2017)…ssert this evidence in support of a motion for relief under rule 3.850.” (citing Archer v. State, 934 So. 2d 1187, 1194 (Fla. 2006); Nordelo v. State, 93 So. 3d 178, 185 (Fla. 2012); Jones v. State, 106 So. 3d 88 (Fla. 3d DCA 2013); Harris v. State, 128 So. 3d 44, 46 (Fla. 3d DCA 2012))). Lastly, Lamb’s complaint in ground seven is that his trial counsel from the public defender’s office did not obtain his “original file” back11 from a different attorney in the same office who had also represented Lamb in th…
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Lennart S. KOO v. State, 184 So. 3d 1101 (Fla. 2016)…bility of the witness’s testimony be evaluated. See also Nordelo v. State, 93 So. 3d 178, 185 (Fla.2012) (finding witness’s recantation, unless inherently incredible or obviously immaterial to verdict, requires evidentiary hearing); Harris v. State, 128 So. 3d 44, 46 (Fla. 3d DCA 2012) (requiring evidentiary hearing to resolve claims of newly discovered evidence, especially when resolution of those claims necessarily requires the trial court to make credibility determinations); Cammarano v. State, 602 So. 2d…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- McLIN v. State, 827 So. 2d 948 (Fla. 2002)
- Ivey Thames v. State, 709 So. 2d 650 (Fla. 2d DCA 1998)
- Garrick John v. State, 98 So. 3d 1257 (Fla. 3d DCA 2012)