Opinion
Case No. 5D19-3031
05-29-2020
Scott HARTMAN, Appellant, v. STATE of Florida, Appellee.
Scott Hartman, Perry, pro se. Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
Scott Hartman, Perry, pro se.
Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
WALLIS, J.
Appellant appeals the order summarily denying his motion for postconviction relief based on newly discovered evidence filed pursuant to Florida Rule of Criminal Procedure 3.850(b)(1). We reverse and remand for the trial court to either attach records conclusively refuting the claim or to hold an evidentiary hearing.
In May 2006, a jury convicted Appellant of twenty-two counts related to burglary and theft. On May 30, 2006, the court sentenced him to thirty-five years in prison followed by fifteen years of probation.
Appellant has appealed his judgment and sentences and he has filed several postconviction motions and petitions, all of which have been denied. Relevant to this appeal, Appellant filed a Rule 3.850 motion on December 28, 2016, alleging newly discovered evidence. He specifically alleged that Eva Mintzer, a state witness, admitted to him during a jailhouse visit on September 2, 2016 that she made inaccurate and untruthful statements implicating him during his trial. Appellant attached an unsworn email purportedly from Mintzer to support his claim. On May 5, 2017, Appellant filed an amended Rule 3.850 motion and attached the same email along with sworn affidavits from Mintzer's daughter, Eva-Marie Mintzer (Daughter), and Mintzer's mother, Eva Curran (Mother), who were present during Mintzer's purported recantation. On September 28, 2017, the trial court denied those motions without prejudice for Appellant to amend his claim and without providing any time limit on the potential amendment. Appellant appealed the trial court's order. We dismissed that appeal, finding it was a non-final, non-appealable order.
In November 2017, Appellant filed another amended motion, attaching new affidavits from Mother and Daughter. The trial court denied Appellant's amended motion without prejudice to his refilling a timely motion with a legally sufficient affidavit from Mintzer. This order did not place a time limit on the filing of the amended motion. Appellant appealed that order, which this Court dismissed, once again finding it was a non-final, non-appealable order.
On August 28, 2019, Appellant filed the present Rule 3.850 motion again raising Mintzer's purported recantation and claiming that it is "newly discovered evidence." As support for this claim, Appellant attached an affidavit from Clint Maxwell, who claimed to have witnessed a second recantation by Mintzer during a conversation on August 4, 2018. Appellant also re-attached the affidavits from Mother and Daughter as well as Mintzer's unsworn email that had been included in the prior motions. On September 27, 2019, the trial court once again summarily denied relief. In denying the motion, the trial court did not reference the previously attached affidavits from either Mother or Daughter.
"To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record." Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). Thus, when the trial court fails to hold an evidentiary hearing, the appellate court must accept the motion's factual allegations as true unless the record refutes them. McKinnon v. State, 221 So. 3d 1239, 1240 (Fla. 5th DCA 2017). Furthermore, in order to obtain relief based on a claim of newly discovered evidence, 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." State v. Robinson, 711 So. 2d 619, 622 (Fla. 2d DCA 1998) (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324–25 (Fla. 1994) ). In addition, "the newly-discovered evidence must be of such nature that it would probably produce an acquittal on retrial." McKinnon, 221 So. 3d at 1240. We find that nothing in the record indicates that Mintzer's purported recantation could have been discovered prior to her jailhouse visit with Appellant on September 2, 2016. Moreover, the record before this Court does not indicate whether the trial court considered the sworn statements from Clint Maxwell, Mother, or Daughter as "newly discovered" impeachment evidence of Mintzer's trial testimony. In some instances, this type of impeachment evidence can qualify as newly discovered evidence warranting postconviction relief. See Floyd v. State, 202 So. 3d 137, 140 (Fla. 2d DCA 2016) (holding that an evidentiary hearing was required even though alleged newly discovered evidence would be admissible only for impeachment purposes; affidavits were consistent with appellant's theory of defense that witnesses who testified at trial had knowingly given false testimony); Robinson, 711 So. 2d at 623 (recognizing that "Florida courts now are willing to consider newly discovered 'impeachment' evidence as sufficient to grant a new trial in certain limited circumstances").
Taking Appellant's allegations as true and assuming that the proposed impeachment evidence is admissible, Appellant could potentially satisfy the second prong of the newly discovered evidence test. In addition, the trial court did not attach records that conclusively refute Appellant's claims. Therefore, it was error to summarily deny the motion. See Benjamin v. State, 793 So. 2d 147, 148 (Fla. 2d DCA 2001) (reversing and remanding for an evidentiary hearing on a claim of newly discovered evidence where that evidence could not have been discovered earlier, the newly discovered evidence may have resulted in an acquittal if presented at trial, and the record did not conclusively refute appellant's claim). Accordingly, we reverse and remand for the trial court to attach records conclusively refuting Appellant's claim or to hold an evidentiary hearing.
REVERSED and REMANDED with Instructions.
COHEN and EISNAUGLE, JJ., concur.