Opinion
No. 1D21-2897
03-16-2022
Christian BUCK, Appellant, v. STATE of Florida, Appellee.
Ana M. Davide of Ana M. Davide, P.A., Coral Gables, for Appellant. Ashley Moody, Attorney General, and Jovona I. Parker, Assistant Attorney General, Tallahassee, for Appellee.
Ana M. Davide of Ana M. Davide, P.A., Coral Gables, for Appellant.
Ashley Moody, Attorney General, and Jovona I. Parker, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Christian Buck appeals an order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Buck asserted that an affidavit by the victim naming another person as the perpetrator constituted newly discovered evidence entitling him to postconviction relief. Finding no merit to his argument, we affirm.
While Buck was serving a sentence in Mayo Correctional Institution, the State charged him with aggravated battery with a deadly weapon for approaching another inmate from behind and using a homemade knife to cut the victim's throat. Buck pleaded guilty and was sentenced to twelve years in prison. He did not challenge his conviction and sentence on direct appeal.
Nearly seven years later, Buck filed a rule 3.850 motion alleging that he was entitled to a new trial based on newly discovered evidence. He claimed that in September 2020, his counsel received an affidavit signed by the victim, which named another inmate as his attacker. Buck asserted that the affidavit showed that he was actually innocent of cutting the victim's throat. Buck alleged that there was a reasonable probability that if he had known this information, he would have insisted on going to trial. Finding that Buck's claim was "inherently incredible" and conclusively refuted by the record, the trial court summarily denied the postconviction motion. This timely appeal follows.
This Court reviews de novo the trial court's summary denial of a postconviction motion. Anderson v. State , 303 So. 3d 596, 597 (Fla. 1st DCA 2020).
Buck argues that the trial court erred in denying his motion because the victim's affidavit naming a different inmate as the perpetrator constitutes newly discovered evidence. Newly discovered evidence claims are subject to a two-part test:
First, the evidence must not have been known by the trial court, the party, or counsel at the time of the plea, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the defendant must demonstrate a reasonable
probability that, but for the newly discovered evidence, the defendant would not have pleaded guilty and would have insisted on going to trial.
Long v. State , 183 So. 3d 342, 346 (Fla. 2016). When determining whether evidence meets this test, a trial court should consider such factors as "whether a particular defense was likely to succeed at trial" and "the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at trial." Id. The trial court found that Buck could not meet either prong of the two-part test for admitting newly discovered evidence.
First, the victim executed the affidavit and was known to the defendant and counsel when Buck entered his plea. Defense counsel had a chance to depose the victim, but he believed that depositions were unnecessary because the altercation was "very well-documented, videotaped." Thus, Buck and counsel could have discovered the victim's alleged recantation at the time of the plea through due diligence.
Second, Buck failed to show that the evidence was "of such nature that it would probably produce an acquittal on retrial." Jones v. State , 709 So. 2d 512, 521 (Fla. 1998). The victim's affidavit does not prove that Buck was innocent of the charge. At best, the victim's affidavit was recanted testimony. But a trial court should not grant a new trial based on a recantation unless the trial court finds it credible. Gorman v. State , 260 So. 3d 1196, 1198 (Fla. 1st DCA 2019). This is because "recanting testimony is exceedingly unreliable" especially when "the recantation involves a confession of perjury." Armstrong v. State , 642 So. 2d 730, 735 (Fla. 1994) (quoting Brown v. State , 381 So. 2d 690, 705 (Fla. 1980) ).
Here, the trial court found the victim's recantation six years after the attack to be inherently incredible. The record shows that the altercation between Buck and the victim was captured on video and that the "video clearly shows" Buck grabbing the victim from behind and making a cutting motion to the victim's throat. As a result, even if the affidavit had been presented at trial, it likely would not have produced an acquittal. It is also unlikely that Buck would have turned down a plea agreement that reduced his maximum potential sentence by seven years. Because the record conclusively refutes Buck's claim that he was entitled to relief based on newly discovered evidence, the trial court did not err in summarily denying Buck's motion for postconviction relief.
AFFIRMED .
Rowe, C.J., and Jay and Long, JJ., concur.