ANDRE G. WITHERSPOON
v.
STATE OF FLORIDA
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Andre Witherspoon appealed a trial court's summary denial of his Rule 3.850 postconviction motion based on newly discovered evidence. The appellate court affirmed denial of the DNA expert claim but reversed the denial regarding testimony from Eli Palmisciano and Greg Beahm, remanding for the trial court to allow amendment of the motion with required affidavits.
The court affirmed summary denial of the DNA expert claim but reversed summary denial regarding Palmisciano and Beahm's testimony. On remand, the trial court must allow Witherspoon to amend his motion and attach required affidavits or explain why no affidavits were attached as mandated by the Florida Rules of Criminal Procedure.
[1] A trial court may not summarily deny a rule 3.850 postconviction motion for newly discovered evidence without providing the defendant an opportunity to amend the motion a…
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Join FLexlaw to unlock all legal intelligence“We affirm, without further discussion, the portion of the order summarily denying Appellant's amended rule 3.850 motion for postconviction relief based upon newly discovered evidence regarding the State's DNA expert claim.”
Establishes that the court upheld the trial court's summary denial of the DNA expert portion of the postconviction motion.
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Join FLexlaw to unlock all legal intelligenceWitherspoon filed an amended Rule 3.850 motion for postconviction relief claiming newly discovered evidence. The motion included claims regarding both…
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Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey Dana Gillen, Judge; L.T. Case Nos. 50-2016-CF-009746-AXXX-MB, 50-2016-CF- 010088-AXXX-MB, and 50-2017-CF-011340-AXXX-MB.
Lisa Viscome of Salnick Law, P.A., West Palm Beach, for appellant. No appearance for appellee. PER CURIAM.
We affirm, without further discussion, the portion of the order summarily denying Appellant’s amended rule 3.850 motion for postconviction relief based upon newly discovered evidence regarding the State’s DNA expert claim.
We reverse the portion of the order summarily denying Appellant’s amended rule 3.850 motion for postconviction relief based upon newly discovered evidence regarding the testimony of Eli Palmisciano and Greg Beahm. On remand, the trial court shall provide Appellant an opportunity to amend his motion and attach the required affidavits of Eli Palmisciano and Greg Beahm or explain why no affidavits were attached as required by Florida Rules of Criminal Procedure 3.850(c)(7) and 3.987(6).
Affirmed in part, reversed in part, and remanded with directions. MAY, DAMOORGIAN and LEVINE, JJ., concur.
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