Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WILLIAM DeJESUS, DOC #553221, ) ) Appellant, ) ) v. ) Case No. 2D19-1747 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed August 26, 2020. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Michelle Sisco, Judge. William DeJesus, pro se. ROTHSTEIN-YOUAKIM, Judge. William DeJesus appeals the summary denial of his postconviction motions pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for an evidentiary hearing because the record does not conclusively establish that DeJesus is not entitled to relief based on his claim of newly discovered evidence. In 2000, a jury found DeJesus guilty of robbery with a firearm. The evidence at trial was legally sufficient to establish that DeJesus and a codefendant, Shawn Rivera, had robbed the victim at gunpoint. As the portions of the record relied on by the State and attached to the postconviction court's order established: (1) the victim identified DeJesus as one of the robbers, both from a photo array soon after the robbery and in court; (2) DeJesus was arrested a few days after the robbery with the victim's ATM card in his pocket and with a firearm similar to one of the two firearms that had been used during the robbery; and (3) a shirt matching the description of a shirt worn by one of the robbers was found at the home of Marysol Pujols, DeJesus's girlfriend, which was about 200 feet away from where DeJesus was arrested. DeJesus's theory of defense was that he had been misidentified and that another man, Pedro Uribe, had committed the robbery with Rivera. The trial court sentenced DeJesus to life imprisonment, and on direct appeal, we affirmed per curiam his conviction and sentence. See DeJesus v. State, 789 So. 2d 993 (Fla. 2d DCA 2001) (table decision). DeJesus sought no further direct review. On September 25, 2017, DeJesus filed a rule 3.850 motion raising a claim of trial court error, a claim of postconviction court error in an earlier postconviction proceeding, and a claim of an illegal disparity between his and Rivera's sentences.1 Thereafter, he twice moved to amend the motion to add a claim of newly discovered 1This motion was not only untimely, see generally Fla. R. Crim. P. 3.850(b) (requiring that a rule 3.850 motion be filed within two years after the conviction becomes final), but successive. For purposes of this opinion, however, we refer to it as "the initial motion." We also affirm without further discussion the denial of any relief based on it. -2- evidence that he purported to have learned about only after filing the initial motion. The postconviction court denied the initial motion and directed the State to respond to the claim raised in the amended motions. Ultimately, the postconviction court denied the amended motions without an evidentiary hearing. We review the denial of the amended motions de novo. Mitchell v. State, 260 So. 3d 456, 457 (Fla. 5th DCA 2018) ("A postconviction court's decision to summarily deny a claim based on newly discovered evidence is subject to de novo review." (citing Nordelo v. State, 93 So. 3d 178, 184 (Fla. 2012))). For the denial "[t]o be upheld on review, the claim must be facially invalid or conclusively refuted by the record." Id. (citing McLin v. State, 827 So. 2d 948, 954 (Fla. 2002)). In his amended motions, DeJesus claimed that a new witness, Stephanie Melgar, had come forward. She was prepared to testify that in summer 2017, Uribe had confessed to her that it was he who had committed the robbery with Rivera and that DeJesus is innocent.2 Specifically, Melgar said that she had been at a bar with Uribe when she received a phone call from her friend, DeJesus's sister. When Melgar told Uribe who had called, he had responded that he knew DeJesus's sister and that she and her family did not talk to him anymore because he had committed the robbery with Rivera but DeJesus had "got[ten] faulted" for it. 2This was not the first time that DeJesus sought postconviction relief based on newly discovered evidence that Uribe had confessed. In July 2012, DeJesus filed a rule 3.850 motion asserting that three other witnesses were available to testify that Uribe had confessed to each of them that he, and not DeJesus, had committed the robbery with Rivera. After an evidentiary hearing at which only one of the three purported witnesses testified, the postconviction court denied DeJesus's motion because it found the witness not credible. -3- DeJesus asserted that he had learned of this new evidence sometime between December 14 and 18, 2017—after he had filed his initial motion—when his mother told him that Melgar had told her this information. He asserted further that this evidence had been unknown to him and his counsel at the time of trial and could not have been discovered with due diligence. Although initially unable to obtain an affidavit from Melgar, he ultimately submitted to the court an affidavit from Melgar dated June 13, 2018. See Fla. R. Crim. P. 3.850(c) (providing that if the defendant's claim is based on a newly discovered witness, "the defendant shall include an affidavit from that person as an attachment to his or her motion" or "provide an explanation why the required affidavit could not be obtained"). The affidavit was consistent with DeJesus's claim. Generally, a motion under rule 3.850 must be filed no later than two years after the conviction became final. See Fla. R. Crim. P. 3.850(b). An exception exists, however, when the motion is based on a claim of newly discovered evidence: such a claim must be "made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence." Fla. R. Crim. P. 3.850(b)(1). "[I]n order to be considered newly discovered, the evidence 'must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.' " Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (Jones II) (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994)). DeJesus asserted that Uribe did not make the statement to Melgar until summer 2017—long after the trial—and that DeJesus raised the claim within weeks of learning about it. Nothing in the record refutes DeJesus's assertion, and the State did not dispute that Melgar's testimony qualified as newly -4- discovered evidence; rather, the State assumed for purposes of its response below that "Melgar would indeed testify that Pedro Uribe confessed to her that he and not the defendant committed this crime." Accordingly, the next question is whether "the newly discovered evidence [is] of such nature that it would probably produce an acquittal on retrial." Id. at 521 (citing Jones v. State, 591 So. 2d 911, 911, 915 (Fla. 1991) (Jones I)). "In considering [this second prong of the inquiry], the trial court should initially consider whether the evidence would have been admissible at trial or whether there would have been any evidentiary bars to its admissibility." Id. The court must then " '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.' " Id. (quoting Jones I, 591 So. 2d at 916). "Newly discovered evidence satisfies the second prong of the Jones II test if it 'weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.' " Marek v. State, 14 So. 3d 985, 990 (Fla. 2009) (alteration in original) (quoting Jones II, 709 So. 2d at 526). The State argued that Uribe's confession to Melgar would be inadmissible at trial pursuant to section 90.804(2)(c), Florida Statutes (2018), which states, in pertinent part, "A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement." "[T]he test for admissibility under . . . section [90.804(2)(c)] is (1) whether the declarant is unavailable, and if so (2) whether the statements are relevant, (3) whether the statements tend to inculpate the declarant and exculpate the defendant, and (4) whether the statements are corroborated." -5- Masaka v. State, 4 So. 3d 1274, 1279 (Fla. 2d DCA 2009) (citing Voorhees v. State, 699 So. 2d 602, 613 (Fla. 1997)). When determining whether statements are corroborated, "[f]irst the trial court must consider the circumstances surrounding the making of the statement itself, including the language used and the setting in which the statement was made, to determine whether those circumstances tend to show that the statements are trustworthy." Id. at 1282 (citing Machado v. State, 787 So. 2d 112, 113 (Fla. 4th DCA 2001)). Next, the "court must consider whether the self-inculpatory statements are consistent with both the defendant's general version of events and the other evidence presented at trial." Id. (citing Carpenter v. State, 785 So. 2d 1182, 1203 (Fla. 2001)). Relying on those portions of the record indicated above, the State argued, "Because the defendant's contentions do not corroborate that Pedro Uribe committed the crime with Shawn Rivera, the statement which Melgar will supposedly attribute to Uribe remains inadmissible." The postconviction court, however, apparently assumed for purposes of its analysis that Melgar's testimony regarding the confession would be admissible, concluding that in light of those portions of the record, "Defendant cannot prove that the alleged newly discovered evidence would probably produce an acquittal on retrial."3 "Although an evidentiary hearing is not a prerequisite in making th[e]s[e] determination[s], 'an evidentiary hearing is the general rule rather than the exception.' " 3In his brief on appeal, DeJesus repeatedly asserts that the postconviction court improperly made a credibility determination with respect to Melgar's proposed testimony and denied his motion based on its finding that her proposed testimony was not credible, but nothing in the court's order supports this assertion. -6- Floyd v. State, 202 So. 3d 137, 140 (Fla. 2d DCA 2016) (first citing Poff v. State, 41 So. 3d 1062, 1064 (Fla. 3d DCA 2010); and then quoting Rolack v. State, 93 So. 3d 450, 452 (Fla. 3d DCA 2012)); see also Barrow v. State, 940 So. 2d 1235, 1237 (Fla. 5th DCA 2006) ("[O]rdinarily an evidentiary hearing is required for the trial court to properly determine . . . whether the newly discovered evidence is of 'such nature that it would probably produce an acquittal on retrial.' " (alteration in original) (quoting McLin, 827 So. 2d at 956)). We see no basis for deviating from that general rule here. The portions of the record on which the State and the postconviction court relied do not conclusively establish that DeJesus is not entitled to relief either because the newly discovered evidence would be inadmissible or because it would not probably lead to an acquittal. As set forth above, those portions of the record establish that: (1) the victim identified DeJesus as one of the robbers both from a photo array soon after the robbery and in court; (2) police arrested DeJesus two days after the robbery and found the victim's ATM card in his wallet4 and a firearm that the victim testified looked like one of the two firearms that had been pointed at her during the robbery; and (3) "a FUBU shirt was found in a house less than 2 blocks from where Defendant was apprehended, which was similar to the one allegedly worn by the perpetrator." But DeJesus asserts that the victim's initial description of the second robber (the one who was not Rivera) matched Uribe, not DeJesus. And with regard to 4DeJesus argues that the victim testified at trial only that she "recognized" the ATM card, and on appeal, he improperly attaches portions of the trial transcript indicating that the ATM card introduced at trial actually had the victim's stepmother's name on it. Regardless, DeJesus has never asserted either that the ATM card found in the wallet in his pocket at the time of his arrest was not the ATM card that had been stolen from the victim two days earlier or that the newly discovered evidence would rebut the evidence that it was the same card. -7- the shirt—which apparently was found, more specifically, at the home of DeJesus's girlfriend, Pujols—DeJesus asserts that Uribe was one of Pujols's housemates, that Uribe also had access to the shirt, and that Uribe actually wore the shirt from time to time. We cannot tell whether these assertions find support in the evidence presented at the trial, but without an evidentiary hearing, we must accept them as true because they are not refuted by the record. Raysor v. State, 276 So. 3d 121, 124 (Fla. 2d DCA 2019) ("On review of an order that summarily denies a rule 3.850 motion, 'the court must accept the movant's factual allegations as true to the extent they are not refuted by the record.' " (quoting Franqui v. State, 59 So. 3d 82, 95 (Fla. 2011))). And in light of these assertions, we cannot agree that DeJesus is conclusively entitled to no relief. At a minimum, they are sufficiently corroborative of Uribe's confession for purposes of its admissibility. See Masaka, 4 So. 3d at 1282. We acknowledge the evidence establishing that DeJesus was found with the ATM card and firearm two days after the robbery, but that evidence does not preclude admission of Uribe's confession at a new trial. See Curtis v. State, 876 So. 2d 13, 22-23 (Fla. 1st DCA 2004) (explaining that for admissibility purposes, "the question is not whether there is some evidence casting doubt on the confession. Rather, the question is whether there is substantial evidence to corroborate the confession"). Moreover, the significance of that evidence to a determination of whether Uribe's confession "weakens the case against [DeJesus] so as to give rise to a reasonable doubt as to his culpability," see Marek, 14 So. 3d at 990 (quoting Jones II, 709 So. 2d at 526), is best addressed in the rest of the mix, at an evidentiary hearing. See Swafford v. State, 125 So. 3d 760, 775-76 (Fla. 2013) ("The Jones standard requires that, in -8- considering the effect of the newly discovered evidence, we consider all of the admissible evidence that could be introduced at a new trial. In determining the impact of the newly discovered evidence, the [c]ourt must conduct a cumulative analysis of all the evidence so that there is a 'total picture' of the case and 'all the circumstances of the case.' " (first citing Jones II, 709 So. 2d at 521; then quoting Lightbourne v. State, 742 So. 2d 238, 247 (Fla. 1999))). Accordingly, we reverse the postconviction court's order and remand for further proceedings consistent with this opinion. Reversed and remanded. NORTHCUTT and SILBERMAN, JJ., Concur. -9-