ALEXANDER WALDEN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Walden appeals the trial court's denial of his second motion to vacate his conviction for robbery and assault with intent to commit murder, based on a third party's confession. The appellate court affirmed the denial, holding that while a third party's confession may support a motion for new trial, it does not compel the trial judge to grant relief, and the trial judge did not abuse discretion in finding the confessor's testimony unworthy of belief.
The trial court did not abuse its discretion in denying the motion to vacate. While a third party's confession is grounds for a motion for new trial, it does not compel the trial judge to grant relief. The trial judge may reject such a confession as unworthy of belief, and such rejection is not an abuse of discretion when the confession contains material discrepancies.
[1] A third party's confession to a crime for which another has been convicted may serve as grounds for a motion for a new trial.
[2] A third party's confession does not compel a trial judge to grant a new trial.
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Join FLexlaw to unlock all legal intelligence“The rule is well established that the confession of a third party is grounds for a motion for a new trial, but does not compel the trial judge to grant a new trial.”
Establishes the fundamental legal principle governing third-party confessions in post-conviction relief motions.
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Join FLexlaw to unlock all legal intelligenceIn 1969, Walden was convicted by jury of robbery and assault with intent to commit murder, and sentenced to 30 years on robbery and 5 years on assault…
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PER CURIAM.
Defendant-appellant seeks review of the trial court’s order denying his second motion to vacate pursuant to RCrP 3.850, 33 F.S.A. In 1969, defendant was informed against for (1) robbery and (2) assault with intent to commit murder, tried by jury, found guilty as charged and sentenced to serve 30 years on the robbery charge and five years on the assault charge, the sentences to run consecutively.
Thereafter, on July 27, 1972 defendant • filed a motion to vacate judgment and sentence pursuant to RCrP 3.850. Attached thereto was the sworn affidavit of one Floyd Perkins who admitted therein that he had committed the crimes for which defendant Walden had been convicted and further alleged that defendant had not participated in the perpetration thereof. A full evidentiary hearing was held thereon in December at which time Perkins refused to confess in open court on the grounds that it would incriminate him. On January 5, 1973 the trial judge denied the motion to vacate on the grounds of insufficient proof.
Subsequent thereto, on March 12, 1974 defendant filed a second motion to vacate and attached thereto was the signed affidavit of Floyd Perkins to the effect that defendant had not participated in the crimes for which he (defendant) had been found guilty. In addition, the results of polygraph examinations administered to the defendant and Perkins also were attached as exhibits. A second evidentiary hearing was conducted on April 23, 1974 at which time Perkins testified that he had participated in the subject robbery for which defendant Walden was convicted and further that defendant did not participate in any way. On May 24, 1974 the trial judge entered his order of denial on the grounds that he found the testimony of Floyd Perkins to be unworthy of belief. Defendant appeals therefrom. We affirm.
The rule is well established that the confession of a third party is grounds for a motion for a new trial, but does not compel the trial judge to grant a new trial. Fast v. State, Fla.App.1969, 221 So. 2d 203.
Reviewing the record on appeal in light of the above rule, we find that there were at least two discrepancies between the facts of the robbery for which appellant was convicted and the testimony of Floyd Perkins at the evidentiary hearing. First, two of the victims testified that there were four robbers whereas Perkins testified that he and two others participated in the robbery. Second, Perkins at the evidentiary hearing testified that approximately $2,000 was taken in contrast to the $15,000 figure stated • in his affidavit. In addition, we note that no witnesses were called by the defense to corroborate the testimony of Perkins.
Thus, we conclude that appellant has failed to demonstrate on this appeal that the trial judge’s rejection of Perkins’ confession on the grounds of it being unworthy of belief was an abuse of discretion. Cf. Fast, supra and Walden v. State, Fla.App.1973, 284 So. 2d 440.
Accordingly, the order herein appealed is affirmed.
Affirmed.
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Tafero v. State, 406 So. 2d 89 (Fla. 3d DCA 1981)…late court, newly discovered evidence is not a basis for 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); Fas…1 / 4
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State v. Basilio Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978)…that newly discovered evidence, whether in the form of 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 appar…
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Henzel v. State, 390 So. 2d 397 (Fla. 3d DCA 1980)…he following cases which announce a rule that newly discovered evidence, such as a third party confession, may be a valid ground for post-conviction relief under Fla.R.Crim.P. 3.850. 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); Fast v. State, 221 So. 2d 203 (Fla.3d DCA 1969); Diamond v. State, 233 So. 2d 418 [*400] (Fla.4th DCA 1970). See also State v. Pitts, 241 So. 2d 399 (Fla.lst DCA 1970), vacated…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fast v. State, 221 So. 2d 203 (Fla. 3d DCA 1969)
- Walden v. State, 284 So. 2d 440 (Fla. 3d DCA 1973)