Andre G. Witherspoon v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: December 4, 2024
• Docket: 4D2024-1649
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

ANDRE G. WITHERSPOON, Appellant,

v.

STATE OF FLORIDA, Appellee.

No. 4D2024-1649

[December 4, 2024]

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey Dana Gillen, Judge; L.T. Case Nos. 50-2016-CF-009746-AXXX-MB, 50-2016-CF- 010088-AXXX-MB, and 50-2017-CF-011340-AXXX-MB.

Lisa Viscome of Salnick Law, P.A., West Palm Beach, for appellant.

No appearance for appellee.

PER CURIAM.

We affirm, without further discussion, the portion of the order summarily denying Appellant’s amended rule 3.850 motion for postconviction relief based upon newly discovered evidence regarding the State’s DNA expert claim.

We reverse the portion of the order summarily denying Appellant’s amended rule 3.850 motion for postconviction relief based upon newly discovered evidence regarding the testimony of Eli Palmisciano and Greg Beahm. On remand, the trial court shall provide Appellant an opportunity to amend his motion and attach the required affidavits of Eli Palmisciano and Greg Beahm or explain why no affidavits were attached as required by Florida Rules of Criminal Procedure 3.850(c)(7) and 3.987(6).

Affirmed in part, reversed in part, and remanded with directions.

MAY, DAMOORGIAN and LEVINE, JJ., concur.

* * * Not final until disposition of timely filed motion for rehearing.