Opinion
Case No. SC07-2072.
September 23, 2008.
Lower Tribunal No(s). 83-435.
Harry Franklin Phillips, a prisoner under sentence of death for the first-degree murder of Bjorn Svenson, appeals the summary denial of his successive motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851(d). We have jurisdiction. See art. V, §§ 3(b)( 1), Fla. Const. We have previously affirmed Phillips's conviction and sentence of death. See Phillips v. State, 705 So. 2d 1320 (Fla. 1998) (affirming death sentence); Phillips v. State, 476 So. 2d 194 (Fla. 1985) (affirming conviction). We also have affirmed denial of Phillips's prior motion for postconviction relief and the circuit court's determination that Phillips is not mentally retarded. See Phillips v. State, 984 So. 2d 503 (Fla. 2008) (affirming finding on mental retardation);Phillips v. State, 894 So. 2d 28 (Fla. 2004) (affirming denial of postconviction relief and denying petition for writ of habeas corpus).
On appeal, Phillips challenges the validity of his death sentence, alleging newly discovered evidence. See Fla.R.Crim.P. 3.851(d). The evidence is two statements reportedly made by the trial judge who presided at Phillips's 1994 resentencing, statements that Phillips claims indicate judicial bias. Having determined that the record demonstrates affirmative knowledge of these matters existed years ago, we hold that Phillips fails to meet the requirements for obtaining postconviction relief. See Reichmann v. State, 966 So. 2d 298, 316. (Fla. 2007) ("First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial." (citing Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). Accordingly, we affirm the circuit court's denial of Phillips's successive motion and the court's denial of Phillips's motion to interview jurors.
QUINCE, C.J., WELLS, ANSTEAD, PARIENTE, LEWIS, and BELL, JJ., and CANTERO, Senior Justice, concur.