RAY B. DOUTH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ray Douth appealed his armed robbery conviction, arguing the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence. The Florida Supreme Court reversed, holding that the newly discovered evidence met the materiality test and warranted a new trial to serve the ends of justice.
The court held that the newly discovered evidence met the materiality test and was not merely impeaching. Although the motion was technically defective in not showing the steps taken to discover the McKendree affidavit, the court found that procedural restrictions on new trial motions need not be inflexible and must sometimes bend to serve the ends of justice.
“evidence having a mere tendency to impeach is insufficient to justify the granting of a new trial on the ground of newly discovered evidence under F.S. § 920.04(3), F.S.A., Winsley v. State, 69 Fla. 391, 68 So. 376, but that the new evidence must go to the merits and be material”
Establishes the legal standard for newly discovered evidence—it must be material and go to the merits, not merely impeach
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of armed robbery of Wright, a jeweler. Wright testified that Douth forced him at gunpoint to strip and surrender two diamonds.…
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HOBSON, Justice.
Appellant herein was found guilty of armed robbery, and timely filed a motion for new trial on the ground of newly discovered evidence, this motion being supported by the affidavits of appellant, his counsel and others. The court denied the motion for new trial and proceeded to enter judgment and sentence, and the sole question presented here is whether this ruling constituted an abuse of discretion by the trial court.
At the trial the complaining witness, one Wright, a manufacturing and wholesale jeweler, testified that appellant had taken him some distance from his home, in appellant’s car, on the pretext of showing to appellant’s wife, for her approval, a diamond which the complaining witness had for sale. Wright further testified that appellant, covering him with a revolver, forced him to walk through a ditch filled with water and strip to his underwear and shoes, divesting him of two diamonds which he had on his person. Wright, in his unclothed condition, was subsequently picked up by the two Alvarez brothers, one, of whom was called as a witness for the State. The Alvarez brothers transported Wright to his home, where he called the police who later apprehended the appellant. The appellant was positively identified by Wright.
The testimony of C.
W. Alvarez corroborated Wright’s .story.
The motion for new trial was accompanied by affidavits from C. W. and R. N. Alvarez and one Clyde McKendree. The affidavits of the Alvarez brothers state that the few clothes the complaining witness was wearing when picked up were dry. They contain other statements inconsistent with the evidence adduced at the trial. The Mc-Kendree affidavit states that the affiant was present at a filling station located on the way to the scene of the crime before it allegedly occurred when he saw two men, one of whom was the complaining witness, proceeding north in an automobile. He later saw the same automobile returning without the complaining witness but still containing the other man, whose appearance, as he described it, did not comport with the physical characteristics of the appellant.
The State contends that the primary effect of these affidavits would be their tendency to impeach the testimony of the complaining witness. We have held that evidence having a mere tendency to impeach is insufficient to justify the granting of a new trial on the ground of newly discovered evidence under F.S. § 920.04(3), F.S.A., Winsley v. State, 69 Fla. 391, 68 So. 376, but that the new evidence must go to the merits and be material. Long v. State, 42 Fla. 612, 28 So. 855; Jones v. State, 35 Fla. 289, 17 So.
284. We think, however, that the evidence which has now been disclosed meets this test. It was the theory of the defense that a false “robbery” was arranged by the complaining witness to cover the disappearance of the rings. The McKendree affidavit would tend to corroborate this theory. On the whole case it appears that there was nothing which' could definitely have led defense counsel to the affiant Mc-Kendree to obtain the information which he later disclosed. Although the body of the motion which accompanied the affidavits may be technically defective in that it does not specifically show the steps used by the defense to acquire the McKendree information, State v. Sears, 148 Fla. 89, 3 So. 2d 721, we have held that such restrictions upon the granting of a new trial on the ground of newly discovered evidence are not inflexible and “must sometimes bend in order to meet the ends of justice.” Gaither v. Anderson, 103 Fla. 1190, 135 So. 840, 139 So. 587, 588, and cases cited therein.
ít appears that the ends of justice will best be served by granting the motion for new trial in this case. The judgment appealed from must therefore be and it is hereby reversed and remanded for further proceedings not inconsistent herewith.
DREW, C. J., and TERRELL, ROBERTS and THORNAL, JJ., concur. THÓMAS, J., dissents. ‘
O’CONNELL, J., not participating.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Baker v. State, 336 So. 2d 364 (Fla. 1976)…he State makes no argument here, however, that defense counsel’s belated discovery of evidence was attributable to a lack of diligence. In this respect, the present case resembles Keaton v. State, 273 [*370] So. 2d 385 (Fla.1973) and Douth v. State, 85 So. 2d 550 (Fla.1956), and should be distinguished from cases like Harvey v. State, 87 So. 2d 582 (Fla.1956), and Luster v. State, 262 So. 2d 910 (Fla.App.3d 1972). In Florida, as elsewhere, “the rule is that the ‘confession’ of a third person is grounds for…
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State v. Basilio Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978)…cases involving motions for new trial under Fla.R.Crim.P. 3.600(a)(3) in which newly discovered evidence is asserted as a ground therefor. See Callaway v. State, 109 So. 2d 364 (Fla. 1959); Harvey v. State, 87 So. 2d 582 (Fla. 1956); Douth v. State, 85 So. 2d 550 (Fla. 1956). Although analogous, we do not regard such cases as controlling. Compare Diamond v. State, 233 So. 2d 418 (Fla. 4th DCA 1970). A motion for new trial differs [*628] fundamentally from a motion to vacate judgment and sentence in that the…
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Wright v. State, 223 So. 2d 112 (Fla. 3d DCA 1969)…witness but would make her estimate of the time she had first seen the appellant in the cafe seem less reliable. Evidence having a mere tendency to impeach a witness is insufficient to justify the granting of a new trial. Douth v. State, Fla. 1956, 85 So. 2d 550. Although he did not assign it as error or argue it as a point in the brief, the appellant has by implication questioned the sufficiency of the evidence. Under such conditions we are not required to review the sufficiency of the evidence. See Rule…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gaither v. Anderson, 103 Fla. 1190 (Fla. 1931)
- Long v. State, 42 Fla. 612 (Fla. 1900)
- Click v. Dowd, 102 Fla. 336 (Fla. 1931)
- State v. Sears, 148 Fla. 89 (Fla. 1941)
- Jones v. State, 35 Fla. 289 (Fla. 1895)
- Williams v. State, 148 Fla. 87 (Fla. 1941)
- Winsley v. State, 69 Fla. 391 (Fla. 1915)