STUART KELLERMAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Kellerman appeals the trial court's denial of his post-conviction relief motion under Fla. Cr.PR 3.850. The court reverses and remands, holding that the defendant was entitled to a full evidentiary hearing on his allegations of newly discovered evidence and prosecutorial misconduct, rather than merely a proffer of evidence.
Yes. The trial court erred in refusing to give the defendant an evidentiary hearing on the allegations contained in his petition for post-judgment relief. The defendant's allegations were unrefuted by the record and entitled him to a full evidentiary hearing.
[1] A motion for post-conviction relief requires an evidentiary hearing when the allegations are unrefuted by the record.
[2] A prior appellate decision affirming the denial of a motion for new trial does not preclude a subsequent motion for post-conviction relief based on different grounds.
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Join FLexlaw to unlock all legal intelligence“the trial court erred in refusing to give defendant an evidentiary hearing on the allegations contained in his petition for post judgment relief”
Statement of the meritable issue on appeal; the core holding of the case
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Join FLexlaw to unlock all legal intelligenceKellerman was convicted by jury in June 1971 of breaking and entering a dwelling and grand larceny. At the motion for new trial hearing, defense couns…
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PER CURIAM.
Defendant-appellant seeks review of an order denying his motion for post conviction relief pursuant to Cr.PR 3.850, 33 F.S.A. On June 17, 1971, after a jury trial defendant was found guilty of breaking and entering a dwelling and grand larceny. Thereafter, defendant filed a motion for new trial and as grounds therefor alleged that new and material evidence had been discovered, that the prosecutor had withheld evidence favorable to the defendant, and the new evidence could not reasonably have been discovered before trial and probably would have changed the verdict. The motion was argued before the trial court prior to the sentencing of the defendant. Defense counsel requested a continuance of the hearing which was denied by the trial judge who, nevertheless, permitted him to proffer the newly discovered evidence and stated he would consider any cause shown for setting aside the sentencing. Counsel for the defense then argued that the confessions of the only two state’s witnesses (alleged accomplices of the defendant) contained in a Coral Gables police report indicated that they had committed a crime in Coral Gables at the approximate time they testified they had participated with the defendant in the crime for which he had been found guilty. The judge found the proffer of this police report insufficient and stated that if the defense could make a more particular showing, counsel could do it at a future date and thereupon denied-the motion for new trial. Thereafter, an appeal was taken to this court, Kellerman v. State, 261 So. 2d 555, wherein we affirmed the conviction and also found there was no abuse of the' trial judge’s discretion in his denial of the motion for new trial. Subsequently, defendant filed a motion to vacate on the grounds of newly discovered material evidence. The trial judge, after hearing arguments of counsel for the respective parties, granted the motion but later reversed himself and reinstated the finding of guilt, judgment and sentence.
On appeal defendant raises two points, the second of which has merit, to wit: the trial court erred in refusing to give defendant an evidentiary hearing on the allegations contained in his petition for post judgment relief.
• We first note that in appellant’s motion for new trial there was only a proffer of the Coral Gables police report which was found insufficient at the time by the trial judge who, nevertheless, allowed defense counsel to make a more particular showing, if he could do so, at a later date. Thus, in Kellerman, supra, we found only that the trial judge did not abuse his discretion in the above ruling. However, the issues raised here on this appeal were not before us, nor were the allegations contained in appellant’s motion for post conviction relief presented for our consideration.
After a review of the record of this appeal, we find defendant’s allegations are unrefuted by the record. We, therefore, reverse the cause with instructions to conduct a full evidentiary hearing into the allegations contained in defendant-appellant’s motion, determine the issues and make the appropriate findings of fact and conclusions of law with respect thereto. See Rayburn v. State, Fla.App. 1967, 203 So. 2d 212.
Reversed and remanded with directions.
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Tafero v. State, 406 So. 2d 89 (Fla. 3d DCA 1981)…or relief under that rule. Smith v. State, supra; Hallman v. State, supra. The contrary suggestion in earlier cases, see, e. g., State v. Gomez, 363 So. 2d 624 (Fla.3d DCA 1978); Walden v. State, 310 So. 2d 426 (Fla.3d DCA 1975); Kellerman v. State, 287 So. 2d 702 (Fla.3d DCA 1973); State v. Pitts, 241 So. 2d 399 (Fla. 1st DCA 1970), vacated on other ground, Pitts v. State, 247 So. 2d 53 (Fla.1971); Diamond v. State, 233 So. 2d 418 (Fla. 4th DCA 1970); Fast v. State, 221 So. 2d 203 (Fla.3d DCA 1969) was, in o…
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Hallman v. State, 343 So. 2d 912 (Fla. 2d DCA 1977)…nted by the appellate court which previously had entertained an appeal in the case and affirmed it by its mandate. In view whereof, petition for rehearing is denied. BOARDMAN, C. J., and McNULTY and OTT, JJ., concur. . But see Kellerman v. State, 287 So. 2d 702 (Fla.3d DCA 1973); Fast v. State, 221 So. 2d 203 (Fla.3d DCA 1969); Nelson v. State, 208 So. 2d 506 (Fla.4th DCA 1968); Tolar v. State, 196 So. 2d 1 (Fla.4th DCA 1967).…
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State v. Basilio Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978)…a third party confession or other demonstrative or testimonial evidence, may constitute a valid ground for collateral attack of a criminal conviction under Fla.R. Crim.P. 3.850. Walden v. State, 310 So. 2d 426 (Fla. 3d DCA 1975); Kellerman v. State, 287 So. 2d 702 (Fla. 3d DCA 1973); Fast v. State, 221 So. 2d 203 (Fla. 3d DCA 1969). The Fourth District Court of Appeal takes the same view, Diamond v. State, 233 So. 2d 418 (Fla. 4th DCA 1970), as does apparently the First District Court of Appeal. See State v.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rayburn v. State, 203 So. 2d 212 (Fla. 2d DCA 1967)
- Kellerman v. State, 261 So. 2d 555 (Fla. 3d DCA 1972)