Opinion
Case No. SC09-1560.
October 15, 2010.
Lower Tribunal No(s). 91-1932-CF.
Harry Jones, a prisoner under sentence of death, appeals the summary denial of his supplemental and successive motions for postconviction relief under Florida Rule of Criminal Procedure 3.851. We previously affirmed Jones' conviction and death sentence on direct appeal. Jones v. State, 648 So. 2d 669, 672 (Fla. 1994), cert. denied 515 U.S. 1147 (1995). We also affirmed the denial of Jones' initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Jones v. State, 998 So. 2d 573, 590 (Fla. 2008). In 2005 and 2007, respectively, Jones filed supplemental and successive postconviction motions challenging his conviction and sentence, alleging newly discovered evidence and violation of his due process rights. On July 9, 2009, the postconviction court summarily denied Jones' motions. We affirm.
Jones first challenges the postconviction court's adoption of the State's proposed order, alleging that such adoption violated his due process rights. However, Jones failed to preserve this issue and as such cannot raise it for the first time on appeal.See, e.g., Archer v. State, 613 So. 2d 446, 448 (Fla. 1993). Additionally, this Court has previously held that no due process violation exists where a postconviction court substantially adopts the State's proposed order as long as the appellant was afforded the opportunity to review and object to the State's proposed order. See, e.g., Valle v. State, 778 So. 2d 960, 964-65 (Fla. 2001). Jones was afforded such an opportunity.
Jones also challenges the postconviction court's summary denial of his 2005 and 2007 motions as untimely and without merit. To prove timeliness of a rule 3.851 claim filed more than one year after the defendant's conviction and sentence become final, the defendant must show that the alleged newly discovered evidence was unknown and "could not have been ascertained by the exercise of due diligence." Fla.R.Crim.P. 3.851(d)(2). Although the postconviction court may have erred in denying Jones' 2005 supplemental motion as untimely, any error was harmless, since the postconviction court correctly denied both motions on the merits. Jones' alleged newly discovered evidence is not of such a character that it is likely to produce an acquittal on retrial. The alleged newly discovered evidence is merely impeachment evidence directed at a witness who was significantly impeached at trial. Moreover, the totality of inculpatory evidence apart from the challenged testimony supports Jones' conviction and sentence. Accordingly, we affirm the postconviction court's summary denial of Jones' 2005 supplemental and 2007 successive postconviction claims.
It is so ordered.