CATHLYN PALMER

v.

THE STATE OF FLORIDA

Opinion filed April 17, 2024. Not final until disposition of timely filed motion for rehearing.

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Nos. 3D22-0693 and 3D23-0134

Lower Tribunal No. F09-26658A

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Cathlyn Palmer,

Appellant,

vs.

The State of Florida,

Appellee.

Appeals from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge. MHK Legal, PLLC, and Mark H. Klein (Coral Springs), for appellant. Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee. Before EMAS, SCALES and BOKOR, JJ. PER CURIAM.

In these consolidated appeals, appellant Cathlyn Palmer seeks review

of the trial court’s summary denial of his motion for postconviction relief,

pursuant to Florida Rule of Criminal Procedure 3.850, on the basis of newly

discovered evidence. This evidence included an affidavit from the victim,

who¹) recanted his trial testimony and his prior out-of-court identification of

Palmer as one of the alleged perpetrators;²) averred that he never saw who

committed the crime; and 3) asserted that police lied to him and forced him

to identify Palmer as one of the perpetrators.¹

As we have previously held, when “reviewing a trial court’s summary

denial of a motion under rule 3.850, we are required to accept as true all true

well-pleaded allegations of a timely and legally sufficient motion to the extent

those allegations are not conclusively refuted by the record. . . . And ‘unless

the record shows conclusively that the appellant is entitled to no relief, the

order shall be reversed and the cause remanded for an evidentiary hearing

or other appropriate relief.’” Williams. v. State, 255 So. 3d 464, 467 (Fla. 3d

DCA 2018) (internal citations omitted).

In order to obtain relief on the basis of newly discovered evidence, the

defendant is required to show: (1) that the evidence was not known by the

trial court, the party or counsel at the time of trial and that neither the

defendant nor defense counsel could have known of such evidence by the

use of due diligence; and (2) that the newly discovered evidence would

probably produce an acquittal on retrial or produce a less severe sentence.

Davis v. State, 26 So. 3d 519, 526 (Fla. 2009). “Newly discovered evidence

satisfies the second prong of the Jones II test if it ‘weakens the case against

[the defendant] so as to give rise to a reasonable doubt as to his culpability.’”

Id. (quoting Jones v. State, 709 So. 2d 512, 526 (Fla. 1998) (“Jones II”)).

In the context of a postconviction claim of newly discovered evidence,

“Florida law treats recantations with suspicion.” McLin v. State, 827 So. 2d

948, 955 (Fla. 2002) (additional citation omitted). “Recanted testimony is a

form of newly discovered evidence, and postconviction relief predicated

upon recanted testimony will not entitle a defendant to a new trial unless (1)

the trial court is satisfied that the recantation is true; and (2) the witness'

testimony will change to such an extent as to render probable a different

verdict.” Ferguson v. State, 306 So. 3d 986, 989 (Fla. 3d DCA 2020) (citing

Armstrong, 642 So. 2d at 735). Such requirements reflect the fact that

“recanting testimony is exceedingly unreliable, and it is the duty of the court

to deny a new trial where it is not satisfied that such testimony is true.” Id.

(quotation and citations omitted).

Nevertheless, an evidentiary hearing is ordinarily required so the trial

court can assess and evaluate the evidence and testimony and make the

attendant credibility and factual determinations to resolve a claim of newly

discovered evidence based on recanted testimony. As the Florida Supreme

Court observed in Robinson v. State, 707 So. 2d 688, 691 (Fla. 1998):

In assessing recanted testimony, we have stressed caution, noting that it may be unreliable and trial judges must “examine all of the circumstances in the case.” State v. Spaziano, 692 So. 2d 174, 176 (Fla.1997) (citing Armstrong v. State, 642 So. 2d 730, 735 (Fla.1994)). Accordingly, “[r]ecantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial.” Spaziano, 692 So. 2d at 176 (quoting Armstrong, 642 So. 2d at 735). That is the purpose of an evidentiary hearing. (Emphasis added).

The Florida Supreme Court reaffirmed this principle in Davis, noting

that a trial court’s determination of whether the recantation is true and meets

the due diligence and probability prongs of Jones II “usually requires an

evidentiary hearing to evaluate credibility unless the affidavit is inherently

incredible or obviously immaterial to the verdict and sentence.” Davis, 26 So. 3d at 526 (citing Stephens v. State, 829 So. 2d 945 (Fla. 1st DCA 2002);

Robinson v. State, 736 So. 2d 93, 93 (Fla. 4th DCA 1999); and Venuto v.

State, 615 So. 2d 255, 256 (Fla. 3d DCA 1993)).

Upon our de novo review of the trial court’s summary denial of the

motion for postconviction relief, see Nordelo v. State, 93 So. 3d 178, 184

(Fla. 2012), we hold that the victim’s affidavit, recanting his trial testimony

and out-of-court identification of Palmer as one of the alleged perpetrators,

was neither inherently incredible nor conclusively refuted by the record.

While it’s true that his affidavit is materially inconsistent with his trial

testimony, this is the very nature of a recantation, and it would be circular

reasoning to suggest that summary denial is appropriate simply because a

witness’ recantation is inconsistent with his trial testimony. Indeed, the

nature and extent of such inconsistencies, the length of delay and reason for

coming forward with the recantation, the materiality of this (and any other)

newly discovered evidence together with the evidence introduced at the trial,

and the totality of the relevant circumstances, are factors to be considered

and weighed at an evidentiary hearing conducted for the very purpose of

determining whether the trial court is satisfied that the recantation is true and,

if so, whether at a new trial the witness' testimony will change to such an

extent as to render probable a different verdict. See Armstrong, 642 So. 2d

at 735.

Under these circumstances, the trial court was required to conduct an

evidentiary hearing on Palmer’s claim of newly discovered evidence,

including the asserted Brady violation. “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.” Harris v. State, 128 So. 3d 44, 46 (Fla. 3d DCA

2012) (remanding for an evidentiary hearing where nothing in the record

established the affidavit was “inherently incredible”) (citing McLin v. State,

827 So. 2d 948, 955-57; Jones v. State, 591 So. 2d 911, 916 (Fla. 1991)).

See also Utile v. State, 235 So. 3d 1045, 1048 (Fla. 5th DCA 2018); Coley

v. State, 74 So. 3d 184, 185 (Fla. 2d DCA 2011).

We reverse and remand with instructions for the trial court to conduct

an evidentiary hearing on defendant’s claim of newly discovered evidence

and the alleged Brady violation.²

Affirmed in part, reversed in part, and remanded with directions.