JOSEPH RAYMOND FOLEY
v.
STATE OF FLORIDA
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A trial court errs in summarily denying a Rule 3.850 motion for newly discovered evidence based on an alleged victim recantation when the motion lacks a required affidavit and the defendant is not given an opportunity to amend.
[1] A trial court errs in summarily denying a Rule 3.850 motion for newly discovered evidence without allowing the defendant an opportunity to amend when the motion is proced…
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Join FLexlaw to unlock all legal intelligence“Therefore, the trial court erred when it summarily denied the claim without giving Foley an opportunity to amend.”
Court's explanation of why summary denial was improper for the newly discovered evidence claim
Joseph Raymond Foley appealed the summary denial of his Rule 3.850 postconviction motion, which alleged ineffective assistance of counsel and newly di…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOSEPH RAYMOND FOLEY,
Appellant,
v. Case No. 5D19-3600
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed July 2, 2020
3.850 Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.
Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Joseph Raymond Foley, Appellant, appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief alleging both ineffective assistance of counsel and newly discovered evidence. We affirm the summary denial of Foley’s ineffective assistance claims.
2 However, we reverse the summary denial as to Foley’s newly discovered evidence claim alleging that one of the victims recanted a portion of her trial testimony. In his postconviction motion, Foley alleged that one of the victims made a statement after trial that contradicted her trial testimony. His motion alleged that this inconsistent statement qualifies as both a recantation and as impeachment evidence. He argues that the victim’s new statement supports his theory of defense, and this evidence would produce a different result upon retrial. However, Foley’s motion was insufficient because he did not attach an affidavit from this witness, nor did he explain why the required affidavit could not be obtained. See Fla. R. Crim. P. 3.850(c). Therefore, the trial court erred when it summarily denied the claim without giving Foley an opportunity to amend. See Fla. R. Crim. P. 3.850(f)(3); Good v. State, 200 So. 3d 185, 185 (Fla. 5th DCA 2016). AFFIRMED in part; REVERSED in part; and REMANDED.
EISNAUGLE, HARRIS, and TRAVER, JJ., concur.