Opinion
No. 92-0613.
October 21, 1992. Rehearing or Certification Denied November 25, 1992.
Appeal from the Circuit Court, Broward County, Thomas M. Coker, Jr., J.
Allen S. Kaufman of Law Offices of Allen S. Kaufman, P.A., Fort Lauderdale, for appellant.
No appearance for appellee.
In a case involving two previous hung juries, see Sayan v. State, 381 So.2d 363 (Fla. 4th DCA 1980), and where the third trial resulted in a verdict only because an Allen charge was given, we cannot possibly say about any evidence that categorically it clearly would not have produced a different result. We reverse the trial court's summary denial of rule 3.850 relief, in his motion for which this prisoner cites newly discovered evidence and ineffective assistance of trial counsel, and remand for a full evidentiary hearing.
REVERSED AND REMANDED.
ANSTEAD, J., concurs specially with opinion.
LETTS, J., dissents with opinion.
This is an unusual case both substantively and procedurally. It is unusual procedurally because an evidentiary hearing was initially conducted, but never completed. It is unusual substantively, not only for the reasons set out in Judge Farmer's opinion, but also because the main witness called in appellant's behalf was his former counsel, now a sitting circuit court judge, whose testimony explicitly and candidly supports appellant's claims. That includes testimony of counsel's absolute inability and disability (by virtue of substantial and severe personal problems) to defend appellant, as well as testimony vouching for the recent discovery of important new evidence casting doubt on appellant's guilt. Under these circumstances I believe that appellant has made a prima facie showing that entitles him to an evidentiary hearing. What the ultimate result will be must necessarily await the completion of that hearing, and the trial court's resolution of the contested issues and application of the appropriate legal standards.
This defendant was convicted of first degree murder as long ago as 1978 and he has been striving ever since, and up until now without success, to get the judgment of guilt overturned. After his direct appeal was affirmed in Sayan v. State, 381 So.2d 363 (Fla. 4th DCA 1980), the defendant turned his attention to collateral attacks. Included in his attempts are two habeas corpus proceedings in federal court and four Florida Rule of Criminal Procedure 3.850 proceedings in state court. None of these has been successful, until now.
The latest rule 3.850 motion in the trial court was based on newly discovered evidence and ineffective assistance of counsel. Both of these grounds have been raised before in earlier rule 3.850 proceedings before this court and I believe the Florida Supreme Court teaches us that a defendant may not raise claims on a piecemeal basis by filing successive motions. Jones v. State, 591 So.2d 911, 913 (Fla. 1991).
Moreover, only a rule 3.850 motion to vacate a sentence exceeding legal limits may be filed at any time. Otherwise, the rule bars filing, after January 1, 1987, in a case concluded before January 1, 1985, unless one of the following applies:
(1) the facts upon which the claim is predicated were unknown to the movant or his attorney and could not have been ascertained by the exercise of due diligence, or (2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
Here, one ground for the motion is said to be newly discovered evidence. I believe the evidence, consisting primarily of recantation of testimony by a witness, reasonably and upon due diligence could have been acquired prior to January 1, 1987. As the trial judge remarked: "This evidence is inherently unreliable, the witness either lying then or lying now." See Mollica v. State, 374 So.2d 1022 (Fla. 2d DCA 1979). Movant's other ground, ineffective assistance of counsel because of counsel's poor emotional state at the time of trial, ought to have been apparent to movant at that time.
This case has dragged through the courts for over fourteen years and I see no reason to perpetuate it. Moreover, looking down the road, the majority opinion appears to cast doubt on the efficacy of any verdict involving an Allen charge. I cannot agree with that.