KENNETH E. GREENE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Greene appeals the summary denial of his Rule 3.850 motion for post-conviction relief based on newly discovered evidence. The trial court denied the motion as improperly successive, but the appellate court reversed, holding that dismissals for procedural insufficiency do not bar successive motions and the trial court failed to conclusively show Greene was not entitled to relief.
The appellate court held that dismissal of a motion for failure to attach an affidavit is not an adjudication on the merits, and therefore does not bar a successive motion. Because Greene's earlier claim of newly discovered evidence was based on pleading deficiencies rather than merits adjudication, the trial court erred in determining the motion was successive. The trial court was required to either hold an evidentiary hearing or attach portions of the record conclusively showing the defendant is not entitled to relief.
[1] A motion for post-conviction relief may not be dismissed as improperly successive if the prior determination of insufficiency was not made on the merits of the claim.
[2] Dismissal or denial of a motion for post-conviction relief for failure to attach an affidavit is not an adjudication on the merits.
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Join FLexlaw to unlock all legal intelligence“Successive motions for postconviction relief are procedurally barred only when a prior motion for postconviction relief was adjudicated on [the] merits and not when the previous motion was summarily denied or dismissed for legal or procedural insufficiency.”
Establishes the legal standard for when successive motions are barred—only when prior adjudication was on the merits, not for procedural deficiencies.
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Join FLexlaw to unlock all legal intelligenceGreene was convicted of attempted first-degree murder with a weapon. Sixteen years after his conviction, Greene received an affidavit from Dollie Dawk…
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Kenneth Greene appeals the summary denial of his motion under Florida Rule of Criminal Procedure 3.850. Greene was tried and convicted of attempted first-degree murder with a weapon. After his conviction was affirmed on appeal, Greene sought post-conviction relief several times without success. His current motion alleges newly discovered evidence. Because the record before this Court does not conclusively show that Greene is not entitled to relief, we reverse.
The instant motion claims newly discovered evidence in the form of testimony from an alleged witness, Dollie Daw-kins, who claims that she was involved in the crime for which Greene was convicted, and that Greene is innocent. Greene alleges he was previously unaware of this witness and only received the affidavit recently, sixteen years after his conviction. Because Greene failed to attach the affidavit to his initial motion, however, the trial court struck the motion with leave to amend.
After a second unsuccessful attempt, Greene filed a third motion that included Dawkins’s affidavit. The affidavit claims that the murder victim raped Dawkins, and that Dawkins then hired someone to help her “hurt” the victim. The affidavit concludes, “Kenny G. is not guilty of anything I [illegible] and inform you that I will testify in court to these fears.” The trial court denied relief because it believed the third motion was improperly successive.
A motion may be dismissed as improperly successive if it fails to allege new dr different grounds for relief, and the prior determination of insufficiency was made on the merits of the claim. Fla. R.Crim. P. 3.850(h)(2). While attaching an affidavit is a prerequisite for a Rule 3.850 claim based on a newly discovered witness, Fla. R.Crim. P. 3.850(c), dismissal or denial of a motion for failure to attach an affidavit is not an adjudication on the merits. See Hutto v. State, 981 So.2d 1236, 1238 (Fla. 1st DCA 2008) (“[Successive motions for postconviction relief are procedurally barred only when a prior motion for postconviction relief was adjudicated on *104the merits and not when the previous motion was summarily denied or dismissed for legal or procedural insufficiency.”). Unless the alleged basis for relief has been adjudicated on its merits, the court must either hold an evidentiary hearing or attach, in support of the denial, portions of the record conclusively showing that the defendant is not entitled to relief. Tompkins v. State, 872 So.2d 230, 238 (Fla.2003).
The dismissal of Greene’s earlier claim of newly discovered evidence was based on pleading deficiencies. His motion proffering the witness’s proposed testimony has never been disposed of on its merits. Therefore, the trial court erred in determining that the motion was successive. We express no opinion on the merits of Greene’s claim.
REVERSED and REMANDED.
PALMER, ORFINGER and COHEN, JJ., concur.
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Citator
Cited By
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Hippler v. State, 205 So. 3d 882 (Fla. 5th DCA 2016)…’s previous rule 3.850 motion(s) were dismissed as vague and too lengthy. Since the denial of Hippler’s earlier motions were for pleading deficiencies, the trial court erred in determining that the current motion was successive. See Greene v. State, 200 So. 3d 102, 103-04 (Fla. 5th DCA 2015). We express no opinion on the merits of Hippler’s claim. REVERSED and REMANDED. LAWSON, C.J., ORFINGER and BERGER, JJ., concur.…
Authorities Cited
- Tompkins v. State, 872 So. 2d 230 (Fla. 2003)
- Rogers v. State, 981 So. 2d 1236 (Fla. 1st DCA 2008)