Boule v. State

District Court of Appeal of Florida

Boule v. State

86 So. 3d 1185, 2012 WL 1440614, 2012 Fla. App. LEXIS 6595

CourtDistrict Court of Appeal of Florida

DecidedApril 27, 2012

DocketNo. 5D11-4509

StatusPublished

Cited by2 cases

This text of 86 So. 3d 1185 (Boule v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boule v. State, 86 So. 3d 1185, 2012 WL 1440614, 2012 Fla. App. LEXIS 6595 (Fla. Ct. App. 2012).

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Opinion

PER CURIAM.

Appellant, Joseph Boule, appeals the summary denial of his rule 3.850 motion in which he alleges that his trial counsel was ineffective in failing to discover a video tape which contradicted the testimony of the officer who arrested him. Although Boule’s motion was filed more than two years after his judgment and sentence became final, Boule is relying on one of the exceptions to the two-year rule by alleging that the video tape is newly discovered evidence. However, it is apparent from Boule’s motion that his claim is insufficiently pled because the motion does not indicate that the video tape constitutes newly discovered evidence. In order for evidence to be considered “newly discovered,” it must have been unknown at the time of trial and it must appear that neither the defendant nor his counsel could have known of it by the exercise of diligence. See Jones v. State, 591 So.2d 911, 916 (Fla.1991) (defining newly discovered evidence). Here, Boule has failed to allege when the video was discovered, that it was unknown to the parties at the time he entered his plea, and that the video could not have been discovered with the exercise of diligence. If Boule, in good faith, can make those allegations he should be given an opportunity to do so. - See Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we reverse and remand for the trial court to strike Boule’s motion with leave to amend his claim in a specified time consistent with the parameters identified in Spera., See Parsons v. State, 981 So.2d 1249, 1250 (Fla. 5th DCA 2008).

REVERSED and REMANDED with Instructions.

GRIFFIN, EVANDER and JACOBUS, JJ., concur.

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PER CURIAM.

Appellant, Joseph Boule, appeals the summary denial of his rule 3.850 motion in which he alleges that his trial counsel was ineffective in failing to discover a video tape which contradicted the testimony of the officer who arrested him. Although Boule’s motion was filed more than two years after his judgment and sentence became final, Boule is relying on one of the exceptions to the two-year rule by alleging that the video tape is newly discovered evidence. However, it is apparent from Boule’s motion that his claim is insufficiently pled because the motion does not indicate that the video tape constitutes newly discovered evidence. In order for evidence to be considered “newly discovered,” it must have been unknown at the time of trial and it must appear that neither the defendant nor his counsel could have known of it by the exercise of diligence. See Jones v. State, 591 So.2d 911, 916 (Fla.1991) (defining newly discovered evidence). Here, Boule has failed to allege when the video was discovered, that it was unknown to the parties at the time he entered his plea, and that the video could not have been discovered with the exercise of diligence. If Boule, in good faith, can make those allegations he should be given an opportunity to do so. - See Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we reverse and remand for the trial court to strike Boule’s motion with leave to amend his claim in a specified time consistent with the parameters identified in Spera., See Parsons v. State, 981 So.2d 1249, 1250 (Fla. 5th DCA 2008).

REVERSED and REMANDED with Instructions.

GRIFFIN, EVANDER and JACOBUS, JJ., concur.

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86 So. 3d 1185, 2012 WL 1440614, 2012 Fla. App. LEXIS 6595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boule-v-state-fladistctapp-2012.

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