Bolender v. State

91 Citing cases

  1. Button v. Sec'y, Fla. Dep't of Corr.

    No. 16-15943 (11th Cir. Nov. 14, 2017)

    As a threshold requirement, a movant must allege that the Rule 3.850 motion has been filed within two years from the date that the evidence was discovered, and that the evidence could not have been discovered earlier with the exercise of due diligence. Bolender v. State, 658 So. 2d 82, 85 (Fla. 1995). Where these threshold requirements are not alleged or demonstrated, a motion filed after the two-year period may be dismissed as untimely.

  2. Swafford v. State

    828 So. 2d 966 (Fla. 2002)   Cited 10 times
    Affirming the trial court's denial of his third motion for postconviction relief

    Accordingly, we direct the trial court on remand to determine whether Swafford has demonstrated as a threshold requirement that his untimely and successive motion for postconviction relief was filed within two years of the time when Lestz's statement could have been discovered through the exercise of due diligence. See Bolender v. State, 658 So.2d 82 (1995). If the trial court determines that Lestz's statement is newly discovered evidence, it must then determine whether the statement, in conjunction with the evidence introduced in Swafford's first rule 3.850 motion and the evidence introduced at trial, would have probably produced an acquittal.

  3. Burns v. State

    110 So. 3d 96 (Fla. Dist. Ct. App. 2013)   Cited 4 times
    Holding that rule 3.850 motion based on newly discovered evidence was facially insufficient where defendant "gave no indication when or how he discovered the evidence or why it could not have been discovered sooner"

    The claims raised in the motion were not cognizable under rule 8.140. A claim of newly discovered evidence must be filed within two years from the date the evidence could have been discovered with the exercise of due diligence. Fla. R. Crim. P. 3.850(b)(1); see Bolender v. State, 658 So.2d 82, 85 (Fla.1995). Therefore, as a threshold requirement, Burns had to not only allege but also demonstrate that his motion was filed within two years from the date that the evidence could have been discovered.

  4. Deskins v. McNeil

    CASE NO. 8:05-CV-1625-T-27MSS (M.D. Fla. Aug. 8, 2008)

    It is now too late for Deskins to file a motion for post-conviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure. See Bolender v. State, 658 So. 2d 82, 85 (Fla. 1995) ("To avoid the effect of this limitation on the basis of newly discovered evidence, Bolender must demonstrate as a threshold requirement that his motion for relief was filed within two years of the time when evidence upon which avoidance of the time limit was based could have been discovered through the exercise of due diligence."). Claims that are unexhausted and procedurally defaulted in state court are not reviewable by this Court unless the petitioner can demonstrate cause for the default and actual prejudice, Wainwright v. Sykes, 433 U.S. 72 (1977), or by establishing the kind of fundamental miscarriage of justice occasioned by a constitutional violation that resulted in the conviction of a defendant who was "actually innocent" contemplated in Murray v. Carrier, 477 U.S. at 496.

  5. Downs v. State

    740 So. 2d 506 (Fla. 1999)   Cited 142 times
    Holding that evidence that the defendant knew about at the time of trial is "by definition" not "newly discovered"

    See Bolender v. State, 658 So.2d 82, 85 (Fla. 1995). By definition, newly discovered evidence concerns facts that were "unknown by the trial court, by the party, or by counsel at the time of trial" and which could not have been discovered by the defendant or counsel through the use of due diligence.See Robinson v. State, 707 So.2d 688, 691 (Fla. 1998).

  6. Mills v. State

    684 So. 2d 801 (Fla. 1996)   Cited 31 times
    Finding Brady claim procedurally barred where defendant raised same claim in previous rule 3.850 motion

    Effective January 1, 1994, we amended rule 3.850(b) to make that rule consistent with rule 3.851 and reduced the time from two years to one year for filing a motion for collateral relief after a death sentence has been imposed. In Bolender v. State, 658 So.2d 82 (Fla.), cert. denied, 116 S.Ct. 12 (1995), we recognized the one-year limitation in rule 3.850(b) but still allowed the defendant a two-year period within which to file an otherwise time-barred claim under the rule following the date that the evidence could have been discovered. We allowed the defendant in Bolender to receive the benefit of the earlier rule which would have applied as of the date the evidence could have been discovered through the exercise of due diligence.

  7. Swafford v. State

    679 So. 2d 736 (Fla. 1996)   Cited 15 times   1 Legal Analyses
    Concluding that at the pleading stage, counsel's claim that an affidavit amounted to newly discovered evidence combined with a statement that counsel was unable to locate a witness because no address was available was sufficient for the purpose of demonstrating that an evidentiary hearing was required

    Accordingly, we direct the trial court on remand to determine whether Swafford has demonstrated as a threshold requirement that his untimely and successive motion for postconviction relief was filed within two years of the time when Lestz's statement could have been discovered through the exercise of due diligence. See Bolender v. State, 658 So.2d 82 (Fla.), cert. denied, ___ U.S. ___, 116 S.Ct. 12, 132 L.Ed.2d 896 (1995). If the trial court determines that Lestz's statement is newly discovered evidence, it must then determine whether the statement, in conjunction with the evidence introduced in Swafford's first rule 3.850 motion and the evidence introduced at trial, would have probably produced an acquittal.

  8. Roberts v. State

    678 So. 2d 1232 (Fla. 1996)   Cited 22 times
    Finding claim that prosecution witness recanted trial testimony constituted newly discovered evidence, that claim was cognizable on rule 3.850 motion, and that trial court should not have denied claim without an evidentiary hearing

    Appellant must show as a threshold requirement that this successive motion for relief was filed within two years of the time when this "newly discovered evidence" could have been discovered through the exercise of due diligence. See Bolender v. State, 658 So.2d 82, 85 (Fla.), cert. denied, ___ U.S. ___, 116 S.Ct. 12, 132 L.Ed.2d 896 (1995). Haines' affidavit, however, is lacking in that it does not state when she was contacted by appellant's counsel about giving the present affidavit and does not in any way explain why the information in the affidavit was not available before the date of it, which is February 14, 1996.

  9. Bolender v. State

    661 So. 2d 278 (Fla. 1995)

    We affirm the trial court's ruling and deny Bolender's request for a stay from his execution, which is scheduled to occur tomorrow, July 18, 1995, at 10:05 a.m. The procedural history of this case is set forth in our opinion released July 11, 1995, in which we approved the trial court's dismissal of Bolender's third motion for postconviction relief, and issued a temporary stay to allow Bolender to seek relief in federal court. Bolender v. State, 658 So.2d 82 (Fla. 1995). This morning, Bolender filed a fourth postconviction motion in the trial court and an application for a stay of execution in this Court.

  10. Penoyer v. State

    Case No. 2D20-3218 (Fla. Dist. Ct. App. Mar. 19, 2021)

    Affirmed. See Johnson v. State, 60 So. 3d 1045 (Fla. 2011); Betancourt v. State, 804 So. 2d 313 (Fla. 2001); Kirkland v. State, 684 So. 2d 732 (Fla. 1996); Bolender v. State, 658 So. 2d 82 (Fla. 1995); Penoyer v. State, 288 So. 3d 596 (Fla. 2d DCA 2019) (table decision); McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013); Penoyer v. State, 130 So. 3d 233 (Fla. 2d DCA 2013) (table decision); Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009); Brown v. State, 13 So. 3d 1087 (Fla. 2d DCA 2009); Steward v. State, 931 So. 2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004); Olsen v. State, 751 So. 2d 108 (Fla. 2d DCA 2000); Chavers v.State, 115 So. 3d 1017 (Fla. 1st DCA 2013); Calandra v. State, 64 So. 3d 156 (Fla. 4th DCA 2011). CASANUEVA, VILLANTI, and SMITH, JJ., Concur.