Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2432 _____________________________ KYLE RAY HIMES, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Nassau County. James Daniel, Judge. January 29, 2021 WINOKUR, J. Kyle Ray Himes challenges the trial court’s denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which alleged newly discovered evidence. Himes argues that he was entitled to an opportunity to amend his facially insufficient motion. We agree and reverse in part. In 2008, Himes was convicted of robbery, which this Court affirmed on appeal. Himes v. State, 8 So. 3d 1136 (Fla. 1st DCA 2009). In 2017, Himes filed the postconviction motion under review. The trial court denied the motion as successive, but this Court reversed because the trial court failed to attach necessary records to prove that the claims were conclusively refuted by the record. See Fla. R. Crim. P. 3.850(h)(2); see also Himes v. State, 254 So. 3d 661 (Fla. 1st DCA 2018). Upon remand, the trial court denied the motion as facially insufficient, without giving Himes leave to amend pursuant to Spera v. State, 971 So. 2d 754, 758-59 (Fla. 2007). We consider three issues Himes raises on appeal. First, Himes suggests that the trial court exceeded the scope of its authority by summarily denying the motion on grounds of facial insufficiency when this Court previously held that Himes’ motion “appear[ed] to be facially valid” and remanded the matter for “further proceedings.” Himes, 254 So. 3d at 662. Himes argues that this Court found that the motion was facially valid and that this finding constitutes law of the case, which the lower court was bound to follow. We disagree. It is not clear that this Court’s earlier conclusion that the trial court failed to attach sufficient records to demonstrate that the appeal was successive foreclosed the trial court from considering the issues on which it found facial insufficiency in this case. See Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 107 (Fla. 2001) (holding that “the law of the case doctrine . . . bars consideration only of those legal issues that were actually considered and decided in a former appeal”) (emphasis added). But more importantly, this Court did not actually rule that Himes’ claims were facially valid, only that that they appeared to be, and merely issued a reversal and remanded for further proceedings. “A reversal and remand with general directions for further proceedings vests the trial court with broad discretion in directing the course of the cause.” Wolfe v. Nazaire, 758 So. 2d 730, 733 (Fla. 4th DCA 2000). Thus, the trial court had full authority to examine Himes’ motion to determine if it was facially valid. As to the motion itself, Himes raised two claims of newly discovered evidence, both of which suggest that Himes was not involved in the robbery. To prevail on a claim of newly discovered evidence, a movant must show the following: (1) the evidence was unknown to the movant or his counsel and could not have been uncovered by due diligence at the time of trial; and (2) the evidence is such that it would probably produce an acquittal on retrial. See Jones v. State, 591 So. 2d 911, 915 (Fla. 1991). Himes’ first claim is supported by an affidavit from an initial suspect in the crime, Mark Tyson. Tyson claimed that he, not 2 Himes, was the getaway driver in the robbery and that Himes was not involved in the crime. While notarized, this document was not made under penalty of perjury, nor did the notary indicate how Tyson was known to her. A newly discovered evidence claim must be supported by a properly sworn affidavit from the witness whose testimony provides the basis for the claim. See Fla. R. Crim. P. 3.850(c). Thus, Himes’ motion was facially insufficient. However, rule 3.850(f)(2) allows a defendant a single chance to amend a facially insufficient motion, including an insufficient affidavit, if he or she can do so in good faith. See Spera, 971 So. 2d at 758–59 (Fla. 2007); Daniels v. State, 66 So. 3d 328, 330 (Fla. 1st DCA 2011) (“Spera requires only one opportunity to amend.”); Fletcher v. State, 53 So. 3d 1249, 1252 (Fla. 4th DCA 2011) (holding that the defendant was entitled to an opportunity to amend because “had [the Defendant’s] ‘affidavit’ been properly sworn, then an evidentiary hearing might have been required to determine whether to set aside Defendant’s conviction on the basis of newly discovered evidence”). Such affidavits may constitute newly discovered evidence, even if the identity of the individual was previously known. See Nordelo v. State, 93 So. 3d 178, 186 (Fla. 2012) (holding that where a co-defendant that had not testified at the defendant’s trial later executed an affidavit confessing that the defendant was not involved with the crime, the affidavit did constitute newly discovered evidence). The trial court found that he could not in good faith amend the motion, because even if Himes filed a properly executed affidavit, it would not undermine the State’s case as to potentially create reasonable doubt about Himes’ guilt. Accordingly, the court ruled that an opportunity to amend under Spera was not warranted. We disagree. The court found that Tyson’s statements were “inherently incredible” because the statute of limitations had passed, so Tyson was not incriminating himself, because the statements were not sworn, and because Tyson’s statements were contrary to the weight of evidence presented at trial. Regarding the first reason, the passage of time alone does not necessarily make a claim inherently incredible. Affidavits produced nearly fifteen years after a criminal event are inherently suspect, but not automatically grounds for summary denial. See Simpson v. State, 100 So. 3d 1258, 1260 (Fla. 4th DCA 2012). Furthermore, it is unclear that a properly sworn affidavit would not expose Tyson to 3 a perjury charge if it was determined that he was lying either in the affidavit itself or in a future evidentiary hearing. See §§ 837.012, 837.02, Fla. Stat. Additionally, the mere fact that an affidavit is contradicted by trial testimony is also not necessarily grounds for a summary denial. See Coley v. State, 74 So. 3d 184, 185 (Fla. 2d DCA 2011) (characterizing exculpatory affidavit as inherently incredible merely due to contradictory trial testimony was improper basis for summary denial of postconviction claim, as this requires credibility determinations that only an evidentiary hearing can resolve); Lamar v. State, 768 So. 2d 500, 501 (Fla. 2d DCA 2000) (reversing summary denial where the witnesses inculpating defendant had been “substantially impeached” at trial). Similarly, the trial court also erred when it concluded that the improper execution of the “affidavit” made the statements inherently incredible without first giving Himes a chance to correct that technical defect. We conclude that the order below does not conclusively resolve Himes’ claim of newly discovered exculpatory evidence. Accordingly, Himes should have been given an opportunity to amend his motion under Spera. See Fletcher v. State, 53 So. 3d 1249, 1252 (Fla. 4th DCA 2011). For similar reasons, the trial court also erred in denying Himes’ second argument on appeal, regarding the affidavit of Jack Tyson, Sr., the father of Mark Tyson. Taken in context with Mark Tyson’s statements, we find that the order does not conclusively resolve this claim of newly discovered exculpatory evidence. Himes failed to raise grounds three, four and five of his motion on appeal. Thus, we affirm the lower court’s order with regard to these grounds. See Watson v. State, 975 So. 2d 572, 573 (Fla. 1st DCA 2008) (“[W]hen a defendant submits a brief in an appeal from a summary denial of a postconviction motion, this Court may review only those arguments raised and fully addressed in the brief.”). Accordingly, because Mark Tyson’s “affidavit” does not contain a proper oath, we reverse the trial court’s order and remand with instructions to strike the motion with leave to refile the motion with a properly sworn affidavit, within a reasonable time period, pursuant to Spera. 4 REVERSED in part, AFFIRMED in part, and REMANDED with instructions. ROWE and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael M. Brownlee of The Brownlee Law Firm, P.A., Orlando, for Himes. Ashley Moody, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee. 5