ADA LOUISE DAMES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ada Louise Dames was convicted of resisting an officer with violence and sentenced to three years in prison. She appealed the trial court's denial of her motion for a new trial based on newly discovered evidence from a witness whose testimony would have contradicted the police officers' accounts. The appellate court affirmed the denial, finding the defendant lacked due diligence in locating the witness before trial.
The court affirmed the trial court's denial of the motion for new trial because the defendant lacked due diligence in attempting to locate and compel the witness's attendance before trial, and the witness's testimony would have merely impeached the officers' credibility rather than addressing the merits of the resisting arrest charge.
[1] A motion for new trial based on newly discovered evidence requires that the evidence be discovered after the trial.
[2] Due diligence must be exercised to present newly discovered evidence at trial.
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Join FLexlaw to unlock all legal intelligence“A motion for new trial will not be granted for newly discovered evidence unless such evidence is discovered after trial; due diligence is exercised to present it at trial; it is material to the issue; it goes to the merits of the case and not merely to impeach a witness who testified; it is not cumulative and it is such as would produce a different verdict.”
Establishes the legal standard for granting a motion for new trial based on newly discovered evidence in Florida.
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Join FLexlaw to unlock all legal intelligenceDames was charged with three counts: resisting an officer with violence, assault and battery, and possession of lottery tickets. After jury trial, she…
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PER CURIAM.
By a three count information, defendant, Ada Louise Dames, was charged with (1) resisting an officer with violence to his person, (2) assault and battery, and (3) possession of lottery tickets. A jury trial was held and a judgment of acquittal was entered as to the possession count. The jury returned a verdict of not guilty as to the assault and battery charge and guilty on the charge of resisting an officer. The trial court then sentenced the defendant to three years in the. state penitentiary. Thereafter, defense counsel filed a motion for new trial on the grounds of newly discovered evidence in that the victim of the shooting was discovered and his testimony directly contradicted the police officers who testified at trial. A hearing was held thereon and at the conclusion thereof, the trial court denied' same. Defendant appeals the denial of her motion for new trial.
Defendant-appellant urges as reversible error the trial court’s denial of the motion for new trial where new and material sworn testimony was discovered and presented which probably would have changed the verdict had it been introduced at trial and which the defendant could not have discovered using reasonable diligence. We cannot agree.
The ground of defendant’s motion was that a material witness, Mr. Filepe, who would have testified that he did not tell the police officers that the defendant had shot him but to the contrary told them that the defendant was his friend and that they should contact her, was out of town at the time of the trial and there was insufficient time before the trial to locate his whereabouts.
A motion for new trial will not be granted for newly discovered evidence unless such evidence is discovered after trial; due diligence is exercised to present it at trial; it is material to the issue; it goes to the merits of the case and not merely to impeach a witness who testified; it is not cumulative and it is such as would produce a different verdict. Harvey v. State, Fla.1956, 87 So. 2d 582; Weeks v. State, Fla.App.1971, 253 So. 2d 459.
The record in the case at bar clearly reflects that existence of Mr. Felipe was known to the defendant prior to the trial had she desired this witness to testify on her behalf. Nevertheless, defense counsel made no effort to compel the attendance of Mr. Felipe by subpoena and made no motion for continuance due to his alleged unavailability. Thus, we are of the view that there was a lack of due diligence exercised by defense and such does not constitute newly discovered evidence. See Harvey, supra and Luster v. State, Fla.App. 1972, 262 So. 2d 910.
Furthermore, at the most Mr. Felipe’s testimony would merely impeach that testimony of the arresting officers and does not go to the merits of the charge (resisting arrest) for which the defendant was found guilty. Again, we conclude this evidence was insufficient to justify the granting of a new trial. See Wright v. State, Fla.App.1969, 223 So. 2d 112.
For the reasons cited hereinabove, the order herein appealed is affirmed.
Affirmed.
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Thomas v. State, 374 So. 2d 508 (Fla. 1979)…diligence must have been shown to have it at the former trial, that it must be material to the issue, it must go to the merits of the case, it must not be cumulative and it must be such as would produce a different verdict. Accord, Dames v. State, 314 So. 2d 171 (Fla. 3d DCA 1975); O’Bryan v. State, 300 So. 2d 323 (Fla. 1st DCA 1974). The trial court properly refused to grant appellant a new trial on this ground as well. It is clear that appellant has failed to meet at least one prong of the aforementioned…
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James v. State, 334 So. 2d 83 (Fla. 3d DCA 1976)…g motions for new trial. Cf. Darden, supra, and Win-gate, supra. We also reviewed the denial of defendant’s motion for new trial on the ground of newly discovered evidence and find no error has been made to appear. See Dames v. State, Fla.App.1975, 314 So. 2d 171. Affirmed.…
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McCALLUM v. State, 559 So. 2d 233 (Fla. 5th DCA 1990)…uce a different verdict. [*235] McVeigh v. State, 73 So. 2d 694 (Fla.1954), appeal dismissed, 348 U.S. 885, 75 S.Ct. 210, 99 L.Ed. 696 (1954); Taylor v. State, 522 So. 2d 418 (Fla. 5th DCA), review denied, 531 So. 2d 1355 (Fla.1988); Dames v. State, 314 So. 2d 171 (Fla. 3d DCA 1975). Furthermore, a motion for new trial based on new evidence is addressed to the sound discretion of the trial court and will only be disturbed on rare occasion. Clark v. State, 379 So. 2d 97 (Fla.1979), cert. denied, 450 U.S. 936,…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Colburn v. City OF Lakeland, 87 So. 2d 582 (Fla. 1956)
- Harvey v. State, 87 So. 2d 582 (Fla. 1956)
- Luster v. State, 262 So. 2d 910 (Fla. 3d DCA 1972)
- Wright v. State, 223 So. 2d 112 (Fla. 3d DCA 1969)
- Adams v. State, 253 So. 2d 459 (Fla. 4th DCA 1971)
- Weeks v. State, 253 So. 2d 459 (Fla. 3d DCA 1971)