DONALD LAMORE v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: September 4, 2020
• Docket: 20-0037
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

DONALD L. LaMORE, ) ) Appellant, ) ) v. ) Case No. 2D20-37 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion filed September 4, 2020. .

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Charlotte County; George C. Richards, Judge.

Donald L. LaMore, pro se.

CASANUEVA, Judge.

Donald L. LaMore appeals the order summarily denying his motion filed

under Florida Rule of Criminal Procedure 3.850 alleging newly discovered evidence.

We reverse and remand for further proceedings.

The State charged LaMore with fifteen counts of sex offenses against a

child, the daughter of his then girlfriend, A.P. A jury found him guilty on two counts of

the lesser included offenses of misdemeanor battery and guilty as charged of lewd sexual battery of a child between twelve and eighteen years of age by one in familial or

custodial authority. The jury acquitted him of the other offenses, and the trial court

granted LaMore's motion to dismiss one of the misdemeanor batteries. The trial court

sentenced LaMore to a year in jail followed by thirty years' imprisonment. The mandate

affirming LaMore's appeal of his convictions and sentences issued on March 8, 2011.

In his postconviction motion, LaMore stated that he has always maintained

his innocence and that the victim fabricated the allegation of sexual battery through the

assistance of family members. He alleged that during their intense arguments, A.P.

would threaten to put him away like she did her husband, who was convicted of

numerous sex offenses against a child. LaMore alleged newly discovered evidence in

the form of an affidavit executed by Kent S. Debney. LaMore claimed that the affidavit

demonstrated that A.P. "had the propensity, willingness, and motive to fabricate sexual

abuse accusations using her daughter." Debney stated in his affidavit that he and his

wife stayed with LaMore and A.P. around February 2001. According to Debney's

affidavit, A.P. and LaMore had been arguing most of the day. When LaMore left for the

back porch, A.P. became very angry and said that LaMore better watch himself

because she knew just what to say to put him in prison for the rest of his life and her

girls would swear to anything she told them to say or do. Debney said he would always

remember A.P.'s statement "because of the way she said it."

LaMore asserted that in light of the nature of A.P.'s husband's offense, the

meaning of A.P.'s threat was that she would have her children lie about being sexually

abused to ensure he [LaMore] went to prison for the rest of his life. LaMore also

asserted that he had twice thrown the victim out of a residence he shared with two other

-2- men, and she therefore had reasons to assist her mother in "this fiction." He noted that

the report of sexual abuse was made less than a week after he threw the victim out the

second time.

There are two requirements that must be met for a conviction to be set

aside based on newly discovered evidence.

First, in order to be considered newly discovered, 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." Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994).

Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Jones[ v. State], 591 So. 2d at 911 [(Fla. 1991)]. To reach this conclusion the trial court is required to "consider all newly discovered evidence which would be admissible" at trial and then evaluate the "weight of both the newly discovered evidence and the evidence which was introduced at the trial." Id. at 916.

In considering the second prong, the trial court should initially consider whether the evidence would have been admissible at trial or whether there would have been any evidentiary bars to its admissibility. See Johnson v. Singletary, 647 So. 2d 106, 110–11 (Fla. 1994); cf. Bain v. State, 691 So. 2d 508, 509 (Fla. 5th DCA 1997). Once this is determined, an evaluation of the weight to be accorded the evidence includes whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. See Williamson v. Dugger, 651 So. 2d 84, 89 (Fla. 1994).

Jones v. State, 709 So. 2d 512, 521 (Fla. 1998).

The postconviction court found that Debney's affidavit satisfied the first

requirement but not the second. Specifically, the court found that A.P.'s statement

would not have produced an acquittal on retrial because it was inadmissible hearsay.

-3- As a result, the court denied LaMore's motion. This was error. LaMore specifically

alleged in his motion that the newly discovered affidavit of Debney revealed A.P.'s

propensity, willingness, and motive to fabricate sexual allegations against him. Thus,

A.P.'s statement made in Debney's presence would have been admissible to impeach

A.P. as a witness. See Musson v. State, 184 So. 3d 575, 578-59 (Fla. 2d DCA 2016)

(explaining that an out-of-court statement not offered to prove the truth of the facts

contained therein but to indicate the motive or bias of a witness does not constitute

hearsay when offered for impeachment purposes); see also § 90.608(2), Fla. Stat.

(2009) ("Any party . . . may attack the credibility of a witness by . . . [s]howing that the

witness is biased.").

Because the postconviction court did not evaluate the newly discovered

evidence as impeachment evidence, we reverse the postconviction court's order and

remand for the court to either attach portions of the record refuting LaMore's claim or to

hold an evidentiary hearing.

Reversed and remanded.

MORRIS and ATKINSON, JJ., Concur.

-4-