Opinion
No. 92-2830.
August 30, 1993. Order Granting Clarification November 17, 1993.
Appeal from the Circuit Court, Duval County, David C. Wiggins, J.
Joey Burton Thompson, pro se.
No Appearance for appellee.
Joey Burton Thompson appeals from the order denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand for further proceedings with regard to the third ground raised in the motion.
Thompson sets forth three grounds for relief. We find the first two grounds to be without merit. As ground three, Thompson claims that his former wife, Janice Thompson, has since confessed to the crime of first-degree murder for which Thompson was convicted herein. Attached to the motion are affidavits from several individuals who attest that Janice so confessed to them some two years after Thompson's conviction.
The lower court, in denying post-conviction relief, noted that at trial Thompson had accused his former wife of the murder and that she had testified for the prosecution as a rebuttal witness. The lower court then determined that Thompson had failed to establish that this newly discovered evidence would have conclusively prevented the entry of judgment. The lower court based this determination on the "existence of other evidence of Thompson's guilt, the opportunity of the defense at trial to question Janice Thompson and the affirmance of Thompson's guilt upon appeal." Unfortunately, no record or trial transcript was provided for our review nor did the lower court attach the transcript of Janice's testimony at trial or those portions of the record evincing Thompson's guilt. The absence of such precludes the possibility of meaningful review on appeal.
We therefore REVERSE, and REMAND for either an evidentiary hearing, or for entry of an order attaching those portions of the record and/or transcript showing that the lower court satisfied itself that the evidence of Thompson's guilt, in conjunction with defense's opportunity to cross-examine Janice at trial, was such that the introduction of this new evidence would not have resulted in a different verdict. In all other respects, the order appealed from is affirmed.
ZEHMER and BARFIELD, JJ., concur.
ON MOTION FOR REHEARING AND/OR CLARIFICATION
We grant appellant's motion for rehearing and/or clarification for the limited purpose of specifically directing the trial court, upon remand, to apply the standard of review for newly discovered evidence espoused in Jones v. State, 591 So.2d 911 (Fla. 1991).
ZEHMER, C.J., BARFIELD and MICKLE, JJ. CONCUR.