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 DWAYNE TREVELYN JOHNSON, ) ) Appellant, ) ) v. ) Case No. 2D20-1125 ) STATE OF FLORIDA, ) ) Appellee. ) ________________________________ ) Opinion filed March 10, 2021. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Collier County; Ramiro Mañalich, Judge. Michelle R. Walsh of Law Offices of Michelle Walsh, P.A., Miami, for Appellant. PER CURIAM. Dwayne Trevelyn Johnson appeals the final order entered by the postconviction court denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850(b)(1). Johnson's sole claim is that he is entitled to a new trial based on newly discovered evidence in the form of a recantation by a trial witness. The postconviction court summarily denied this claim, finding that the recantation was contradicted by other evidence at trial.1 Because the alleged newly 1This court reversed the initial summary denial of Johnson's motion on the basis that the postconviction court did not attach documents from the record in support of its findings. See Johnson v. State, 277 So. 3d 288, 289 (Fla. 2d DCA 2019). On discovered evidence is not conclusively refuted by the record, Johnson was entitled to an evidentiary hearing. We therefore reverse. At trial, the State presented two witnesses who testified that Johnson committed a robbery. Charles Patti, who was eighteen years old at the time of the trial, testified that he and his friend, Adrien Requeina, were sitting on the hood of his vehicle in an area known for drug activity. He testified that Johnson approached him, pointed a gun at his groin area, and told him to hand over the gold jewelry that he was wearing. After he handed over the jewelry, Johnson left and Patti asked Requeina what just happened. Requeina responded, "I'd get out of here if I were you." Patti then got into his vehicle and drove home. He did not report the crime to police until the next day after speaking to his mother and stepfather. Requeina, who was sixteen, testified that he was familiar with Johnson from the neighborhood and that Johnson approached them as they were sitting on the hood of Patti's vehicle. Requeina's testimony was equivocal, and he contradicted himself several times. He testified that he did not hear Johnson say anything to Patti and that while he saw Patti remove his jewelry, he did not see him give it to Johnson. He also testified that he never saw Johnson with a gun. After deliberations, the jury found Johnson guilty of robbery without a firearm. Several years later, Johnson filed the underlying motion premised on an affidavit from a third party named Benjamin Whitfield. In the affidavit, Whitfield stated that Patti confessed that he was never robbed by Johnson. Instead, Patti gave his jewelry to Johnson in exchange for drugs. Whitfield added that he had never met remand, the postconviction court again summarily denied Johnson's claim and included the transcript of the jury trial with the record on appeal. -2- Johnson before and that he found Johnson's contact information on the Florida Department of Corrections website. The postconviction court denied the motion, reasoning that both witnesses identified Johnson from a photo lineup and that at the time of trial, "Patti had no concerns that [Johnson] was not the person who robbed him." To obtain a new trial based on newly discovered evidence, a defendant must demonstrate (1) that the evidence was not known at the time of trial and could not have been known through diligence and (2) that "the newly discovered evidence is of such nature that it would probably produce an acquittal on retrial." Schofield v. State, 67 So. 3d 1066, 1069 (Fla. 2d DCA 2011) (quoting Hitchcock v. State, 991 So. 2d 337, 349 (Fla. 2008)). For a summary denial to be upheld on review, "the claims must be facially invalid or conclusively refuted by the record." McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (quoting Foster v. State, 810 So. 2d 910, 914 (Fla. 2002)). The summary denial of a newly discovered evidence claim is reviewed de novo. Mitchell v. State, 260 So. 3d 456, 457 (Fla. 5th DCA 2018) (citing Nordelo v. State, 93 So. 3d 178, 184 (Fla. 2012)). The postconviction court correctly notes that "recantations are exceedingly unreliable." See Marquard v. State, 850 So. 2d 417, 424 (Fla. 2002). However, an evidentiary hearing is generally required to evaluate the veracity of the recanting witness. Robinson v. State, 736 So. 2d 93, 93 (Fla. 4th DCA 1999); see also Utile v. State, 235 So. 3d 1045 (Fla. 5th DCA 2018). And while newly discovered evidence in the form of impeachment evidence was once considered insufficient to warrant a new trial, "Florida courts now are willing to consider newly discovered 'impeachment' evidence as sufficient to grant a new trial in certain limited circumstances." State v. Robinson, 711 So. 2d 619, 622-23 (Fla. 2d DCA 1998). -3- For instance, this court determined that an evidentiary hearing was required even though alleged newly discovered evidence would be admissible only for impeachment purposes. Floyd v. State, 202 So. 3d 137, 140 (Fla. 2d DCA 2016). In so holding, this court relied on the fact that the affidavits were consistent with the appellant's theory of defense that the witnesses were lying, concluding that "[w]ithout holding an evidentiary hearing, the postconviction court here could not adequately determine that the evidence would probably produce the same result on retrial." Id.; see also DeJesus v. State, 302 So. 3d 472, 477 (Fla. 2d DCA 2020) (holding that the significance of the evidence presented at trial to a determination of whether the witness's recantation "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability" was best addressed at an evidentiary hearing (alteration in original) (quoting Marek v. State, 14 So. 3d 985, 990 (Fla. 2009))). Here, Whitfield's affidavit offered potentially exculpatory evidence directly related to Johnson's guilt. The affidavit was not "inherently incredible" or "obviously immaterial." See Davis v. State, 26 So. 3d 519, 526 (Fla. 2009). Furthermore, the affidavit was consistent with Johnson's theory of defense—that Patti gave Johnson his jewelry for some other purpose. See Floyd, 202 So. 3d at 140. Thus, the postconviction court improperly weighed the evidentiary conflicts without the benefit of an evidentiary hearing. See DeJesus, 302 So. 3d at 475 (explaining that in considering whether the newly discovered evidence "would probably produce an acquittal on retrial" the trial court must "consider all newly discovered evidence which would be admissible" and weigh "the newly discovered evidence and the evidence which was introduced at the trial" (quoting Jones v. State, 709 So. 2d 512, 521 (Fla. 1998))). -4- We are mindful of the fact that Patti's alleged recantation would only be admissible for impeachment purposes. See Tarner v. State, 938 So. 2d 635, 637 (Fla. 5th DCA 2006) ("A statement offered to impeach a witness is not hearsay because it is not offered to prove the truth of the matter asserted. Rather it is offered to show why the witness is not trustworthy." (citing Fitzpatrick v. State, 900 So. 2d 95, 515 (Fla. 2005))). And although the evidence as alleged in the affidavit might not be sufficient to warrant a new trial, the court's obligation at this stage is to determine whether an evidentiary hearing is warranted. Accordingly, we reverse the summary denial of Johnson's newly discovered evidence claim and remand for the postconviction court to hold an evidentiary hearing on this claim. Reversed and remanded. CASANUEVA, SLEET, and ATKINSON, JJ., Concur. -5-