STATE OF FLORIDA
v.
JOE SEARS
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The Florida Supreme Court affirmed the trial court's grant of a motion for a new trial based on newly discovered evidence in a criminal case involving Joe Sears. The Court held that the defendant's affidavits met the statutory requirements under the Criminal Procedure Act for demonstrating newly discovered evidence of a disinterested eyewitness to a self-defense encounter.
The trial court properly granted the motion for a new trial. The affidavits were sufficient under the statute because they established that Sullivan's evidence was new, material, and could not have been discovered with reasonable diligence before trial. The defendant adequately showed the means employed to locate the witness and the diligence exercised.
“new and material evidence which if introduced at the trial would probably have changed the verdict or finding of the court, is discovered which the defendant could not with reasonable diligence have discovered and produced upon the trial”
The statutory standard under Section 241 of the Criminal Procedure Act for granting a new trial based on newly discovered evidence
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Join FLexlaw to unlock all legal intelligenceJoe Sears was tried in connection with an encounter with David Register. After trial, a witness named L. E. Sullivan, a Jacksonville resident who witn…
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This appeal is prosecuted by the State from an order of the trial court granting defendant’s motion for a new trial as authorized by the Criminal Procedure Act, Chapter 19554, Acts of 1939.
Although, in seeking a reversal', the State has argued the several grounds set up in motion for new trial it does not appear necessary to discuss any grounds save the one of newly discovered evidence and whether it met the requirement of the Criminal Procedure Act. We therefore limit this treatment to that question.
Section 241 of the Criminal Procedure Act among other things provides that the court shall grant a new trial when “new and material evidence which if introduced at the trial would probably have changed the verdict or finding of the court, is discovered which the defendant could not with reasonable diligence have discovered and produced upon the trial.”
The motion for new trial is supported by the affidavit of appellee and L. E. Sullivan, a witness to the encounter who was not found until after the trial. *91Sullivan swears in substance that he is a resident of Jacksonville, that he witnessed the encounter between appellee and David Register which he detailed fully and that he did not know the appellee or his attorney before the trial. Joe Sears swears that he made every effort to locate all eye witnesses to the difficulty before the trial and did not know or locate Sullivan until after the trial though he exhausted every effort to do so.
The motion for new trial as supported by the affidavits is sufficient. It alleges that the evidence of Sullivan is new and material and that it was not discovered until after the trial though every means was exhausted to do so. The means employed to locate Sullivan is also shown. Whether or not Sullivan’s testimony would have changed the verdict, we cannot speculate. It all related to the matter of self defense and this is a matter for the jury to determine.
The trial court had all the parties before him and held the motion and affidavits to meet the requirement of the statute. We do not feel that there is sufficient showing to reverse him on this point. The statute may have the effect of relaxing the rule heretofore followed as to the sufficiency of an affidavit in support of a motion for new trial on the ground of newly discovered evidence, but such affidavits should be carefully scrutinized and not permitted to prevail unless they conform to every requirement of the law.
The evidence of Sullivan is cumulative in a sense and would not be permissible under the old rule but it is material since he was a disinterested party and was the only eye witness to the encounter except the participants. Affidavits for new trial on the ground of newly discovered evidence should specify the means *92used to secure the evidence in the first instance. The trial judge has a wide discretion in the matter of granting or denying them which we will not overthrow unless some abuse is shown. The mere affidavit of the defendant that he exercised diligence is not sufficient. He must show the degree and character of diligence he exercised.
The judgment is affirmed.
Affirmed.
Whitfield, acting C. J., Chapman and Thomas, J. J., concurring.
Brown, C. J., absent, not participating.
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Lowe v. State, 154 Fla. 730 (Fla. 1944)…ce, which if introduced at the trial would probably have changed the verdict or finding of the court, is discovered which the defendant could not with reasonable diligence have discovered and produced upon the trial.” In the case of State v. Sears, 148 Fla. 89, 3 So. (2nd) 721, we construed Subsection (3) of the statute, sufra. The newly discovered evidence was the location and availability of the testimony of the witness Sullivan, an eye witness to the encounter, who could not be located or his attendanc…
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Baker v. State, 336 So. 2d 364 (Fla. 1976)…have changed the verdict.” Rule 3.600(a)(3), RCrP. Accordingly, the “trial judge has a wide discretion in the matter of granting or denying [motions for new trial] which we will not overthrow unless some abuse is shown.” State v. Sears, 148 Fla. 89, 3 So. 2d 721, 722 (1941). State v. Strickland, 172 So. 2d 260 (Fla.App.2d 1965). Only very rarely should the trial court’s determination be disturbed, see Hicks v. State, 127 Fla. 669, 173 So. 815 (1937); Solis v. State, 262 So. 2d 9 (Fla.App.2d 1972) cert. den.…
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Sylvia v. State, 210 So. 2d 286 (Fla. 3d DCA 1968)…70, 41 So. 395; Pitts v. State, Fla.1966, 185 So. 2d 164, and it is incumbent upon the appellant to demonstrate an abuse of this discretion before this court would be warranted in reversing the convictions on this point. State v. Sears, 148 Fla. 89, 3 So. 2d 721; Gilchrist v. State, Fla.App.1965, 177 So. 2d 777; Hanson v. State, Fla.App.1966, 187 So. 2d 54. It is apparent that the trial court exercised due diligence in determining what the additional evidence would disclose, and determined that it was somet…
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