Opinion
No. 1D19-574
07-23-2019
Floyd RUPP, Appellant, v. STATE of Florida, Appellee.
Floyd Rupp, pro se, Appellant. Ashley Moody, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
Floyd Rupp, pro se, Appellant.
Ashley Moody, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Floyd Rupp appeals an order denying his motion for postconviction relief. Because Rupp's motion was untimely, we affirm.
Rupp argued that although his motion was filed outside the two-year period provided for in Florida Rule of Criminal Procedure 3.850(b), his motion was not barred because newly-discovered evidence supported his postconviction claims. Rupp claimed that he recently learned that the State committed a discovery violation by failing to disclose a recording of a jailhouse informant's interaction with Rupp that could have been used to impeach the informant's testimony.
To qualify as newly-discovered evidence, "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." Martinez v. State , 265 So. 3d 690, 692 (Fla. 1st DCA 2019) (quoting Marek v. State , 14 So. 3d 985, 990 (Fla. 2009) ). Moreover, the evidence "must be of such nature that it would probably produce an acquittal on retrial." Id. Here, the record shows that Rupp's counsel was made aware of the recording at the time of Rupp's trial. The recording was referenced in a police report provided to defense counsel, and it was mentioned again in the State's Fourth Supplemental Discovery served on defense counsel before trial. Rupp cannot prove that the recording was suppressed by the State or that it could not have been discovered within two years of his conviction becoming final because the evidence was disclosed in a timely manner. See King v. State , 146 So. 3d 505, 506 (Fla. 1st DCA 2014) (holding that the disclosure of the existence of evidence triggers a defendant's duty to exercise due diligence in investigating the defense).
Because his motion was filed four years after his convictions became final, and the evidence supporting Rupp's claims was not newly-discovered, the trial court properly denied the postconviction motion as untimely. Cf. Blake v. State , 152 So. 3d 66, 68 (Fla. 2d DCA 2014) (declaring that "[a] claim of newly discovered evidence can be an exception to the two-year time limitation in rule 3.850(b)").
AFFIRMED .
B.L. Thomas, Rowe, and Osterhaus, JJ., concur.