Full Opinion

Third District Court of Appeal State of Florida Opinion filed August 12, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1681 Lower Tribunal No. 01-18714 ________________ Yancy Lightner, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Alan S. Fine, Judge. Law Offices of Richard Rosenbaum, and Richard L. Rosenbaum (Fort Lauderdale), for appellant. Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee. Before EMAS, C.J., and SCALES and HENDON, JJ. HENDON, J. Yancy Lightner appeals from the trial court’s order, rendered after an evidentiary hearing, denying his successive 3.850 petition for postconviction relief based on newly discovered evidence and manifest injustice or, in the alternative, petition for writ of habeas corpus based on newly discovered evidence and manifest injustice. We affirm. Lightner was arrested in 2001 and charged with three counts of armed robbery with a firearm. He was tried by a jury and convicted as charged. The trial court imposed a life sentence on each count. Lightner’s convictions and sentences were affirmed without opinion. Lightner v. State, 948 So. 2d 768 (Fla. 3d DCA 2007). Lightner filed a timely motion for postconviction relief, raising several claims, including a claim that his trial counsel provided ineffective assistance by failing to properly investigate, interview and present, at trial, two exculpatory witnesses. The trial court held an evidentiary hearing on October 5, 2007, and denied Lightner’s motion. That order was affirmed on appeal. Lightner v. State, 59 So. 3d 282, 283– 84 (Fla. 3d DCA 2011). Lightner filed his current motion for postconviction relief on the ground of newly discovered evidence. The “newly discovered evidence” that Lightner asserts entitles him to a new trial is the testimony of Christopher Nealy. Nealy hosted a gambling party at his house during which three different victims were robbed at gunpoint. Nealy implicated Lightner in his pretrial statements to the police and the 2 State, but changed his testimony at Lighter’s trial to neither implicate nor exonerate Lightner. Sixteen years later, Nealy provided an affidavit asserting that Lightner was not the person who committed the armed robbery that night, although Nealy claims he does not know who committed the crime. Lightner asserted the following claims in his most recent Rule 3.850 motion: the post-conviction court reversibly erred by denying Lightner’s newly discovered evidence motion; reversal is warranted because the newly discovered evidence would likely have affected the outcome of the proceedings; Lightner established that he used due diligence in discovering the newly discovered evidence; Lightner received ineffective assistance of counsel when defense counsel failed to properly communicate with and advise him or pursue any plea negotiations. After reviewing the trial record, and hearing the testimony of Nealy and Lightner, the trial court concluded that the defense did not carry its burden to show that Nealy’s affidavit testimony would result in Lightner’s acquittal on retrial. The trial court acknowledged that Nealy’s pretrial statements to the police and the State were supported by other witnesses who came forward to the police and testified at trial, and Nealy’s current testimony was duplicative of other witness testimony. The court noted that Nealy’s testimony at Lightner’s trial was that he could not remember anything about the incident, and further, his current affidavit contradicts all of his prior pretrial statements implicating Lightner in the robberies. Nealy did not provide 3 a convincing explanation for the material change in his testimony or his sudden recollection sixteen years after his trial testimony. The postconviction court concluded that, “Nealy’s trial testimony was untruthful and that he did all he could to help Lightner without saying that he lied to the police and in his sworn statement to the State before trial. The court is not convinced that Mr. Nealy’s most recent version of the events in 2003 is truthful.” The court denied Lightner’s claim of ineffective assistance of counsel as successive and time-barred, and denied postconviction relief on the newly discovered evidence claim. Standard of Review As explained in Taylor v. State, 260 So. 3d 151, 158 (Fla. 2018), in order to obtain a new trial based on newly discovered evidence, a defendant must meet two requirements, as set forth in Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). 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. Further, the trial court is required to consider all newly discovered evidence which would be admissible at trial and then evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial. When reviewing a court's application of the above law to a rule 3.850 motion following an evidentiary hearing, we apply the following standard of review: As long as the trial court's findings are supported by competent substantial 4 evidence, [we] will not substitute [our] judgment ... on questions of fact, likewise of the credibility of the witnesses. Farina v. State, 937 So. 2d 612, 622 (Fla. 2006) (citations and internal quotation marks omitted). We agree with the trial court that Lightner is not entitled to relief on the ground of ineffective assistance of counsel, as he has already had a full and fair hearing on that claim. Lightner, 59 So. 3d at 283–84. A defendant may not raise claims of ineffective assistance of counsel on a piecemeal basis by filing successive motions. See Jones v. State, 591 So. 2d 911 (Fla. 1991). On the claim of newly discovered evidence, the trial court appropriately held an evidentiary hearing. After evaluating the trial record and testimony of the affiant and Lightner, the trial court concluded that the alleged newly discovered evidence failed in light of the Jones analysis. The postconviction court correctly determined that Nealy's affidavit would likely not produce an acquittal for Lightner on retrial because the information within the affidavit is cumulative to the evidence already presented by the defense at the 2001 trial. A recantation will not be considered newly discovered evidence where the recantation offers nothing new or where the recantation is offered by an untrustworthy individual who gave inconsistent statements all along. See, e.g., Walton v. State, 847 So. 2d 438, 454-55 (Fla. 2003) (finding that recantation was “simply a new version of the events from a witness/participant who has presented multiple stories since the time of the occurrence of the events themselves”); Smith 5 v. State, 400 So. 2d 956 (Fla. 1981) (finding that recantation testimony was cumulative to the evidence introduced at trial). We agree that Lightner’s claim fails the Jones analysis because Nealy’s affidavit would probably not produce an acquittal on retrial. The trial court properly applied the law, and its findings are supported by competent substantial evidence. Consequently, the appellate court is precluded from substituting its judgment for that of the trial court on the matter. See Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997) (holding that as long as the trial court’s findings are supported by competent substantial evidence, the Court will not substitute its judgment for that of the trial court on questions of fact, the credibility of the witnesses and the weight to be given to the evidence by the trial court). Affirmed. 6