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Burns v. State

District Court of Appeal of Florida, First District
Nov 13, 2003
858 So. 2d 1229 (Fla. Dist. Ct. App. 2003)

Summary

reversing trial court's summary denial of motion for postconviction relief based on newly discovered evidence, and remanding for evidentiary hearing; rejecting trial court's conclusion that co-defendant's affidavit—in which he acknowledged he falsely implicated defendant by lying under oath at trial that defendant paid him to commit the arson—could not be "newly discovered" because defendant knew at the time of trial that the codefendant was lying

Summary of this case from Blaise v. State

Opinion

Case No. 1D03-0506.

Opinion filed November 13, 2003.

An appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge.

Appellant, pro se.

Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.


The appellant challenges the trial court's summary denial of his rule 3.850 motion. The appellant was convicted after a jury trial for arson and burning to defraud an insurer. The appellant claims that he has newly discovered evidence, which if known at trial would probably have resulted in his acquittal, in the form of a new affidavit by a codefendant acknowledging that this codefendant lied at trial in implicating the appellant as a principal in an arson as having paid the codefendant to commit the arson.

Recantation evidence is a type of newly discovered evidence. See Stephens v. State, 829 So.2d 945, 945 (Fla. 1st DCA 2002). To be newly discovered, the evidence must be such that neither the appellant, his counsel, nor the trial court could have discovered the facts in the affidavit at the time of trial through the exercise of due diligence, and must be such that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla. 1998), cert. denied, 523 U.S. 1040 (1998).

The trial court summarily denied the appellant's claim because at trial the appellant had presented testimony by another prisoner that the appellant's codefendant had told this other prisoner that he had been pressured to lie about the appellant's involvement in the arson in order to cut himself a deal. The trial court reasoned that the appellant had therefore known at trial that the codefendant was lying, and thus the fact of the codefendant's lying could not constitute newly discovered evidence. In this regard, the trial court erred.

Even though the appellant knew at trial that the codefendant was lying, the appellant could not have gotten the codefendant to admit that he was lying earlier, and thus the recantation is newly discovered evidence that could not have been obtained earlier with due diligence.See Lee v. State, 677 So.2d 312, 314 (Fla. 1st DCA 1996); Kendrick v. State, 708 So.2d 1011, 1012 (Fla. 4th DCA 1998); Cammarano v. State, 602 So.2d 1369, 1371 (Fla. 5th DCA 1992).

Since the codefendant's testimony appears to have been key in obtaining the appellant's conviction, an evidentiary hearing is warranted. See McLin v. State, 827 So.2d 948, 954-55 (Fla. 2002); Stephens, 829 So.2d at 945-46; Robinson v. State, 736 So.2d 93 (Fla. 4th DCA 1999).

We accordingly reverse the summary denial and remand with instructions for the trial court to conduct an evidentiary hearing.

REVERSED.

ERVIN, BOOTH and KAHN, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED


Summaries of

Burns v. State

District Court of Appeal of Florida, First District
Nov 13, 2003
858 So. 2d 1229 (Fla. Dist. Ct. App. 2003)

reversing trial court's summary denial of motion for postconviction relief based on newly discovered evidence, and remanding for evidentiary hearing; rejecting trial court's conclusion that co-defendant's affidavit—in which he acknowledged he falsely implicated defendant by lying under oath at trial that defendant paid him to commit the arson—could not be "newly discovered" because defendant knew at the time of trial that the codefendant was lying

Summary of this case from Blaise v. State

explaining why recanted testimony generally qualifies as "newly discovered evidence" for purposes of a new trial request

Summary of this case from Hubbard v. State
Case details for

Burns v. State

Case Details

Full title:JACK DONALD BURNS, Appellant, v. STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, First District

Date published: Nov 13, 2003

Citations

858 So. 2d 1229 (Fla. Dist. Ct. App. 2003)

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