FABIAN PICKETT v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: April 26, 2023
• Docket: 22-0717
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 26, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-717 Lower Tribunal No. F15-8075 ________________

Fabian Pickett, Appellant,

vs.

The State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge.

Daniel J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.

Ashley Moody, Attorney General, and Katryna Santa Cruz, Assistant Attorney General, for appellee.

Before LOGUE, SCALES and HENDON, JJ.

SCALES, J. Fabian Pickett appeals the trial court’s summary denial of his Florida

Rule of Criminal Procedure 3.850 motion. Pickett’s post-conviction motion

alleged that Pickett is entitled to a new trial based both on newly discovered

evidence and on six bases of ineffective assistance of trial counsel. Pickett

was convicted of attempted second-degree murder after firing multiple gun

shots toward the victim. At trial, Pickett’s defense was that he fired his gun

toward the victim in preemptive self-defense, believing (though erroneously)

that the victim might have a gun. The trial court sentenced Pickett to twenty

years in prison, applying a minimum mandatory sentence. On plenary

appeal, this Court upheld Pickett’s conviction and sentence. Pickett v. State,

254 So. 3d 1162 (Fla. 3d DCA 2018).

About four years after sentencing, the victim signed an affidavit in

which the victim recanted his trial testimony, and stated that, contrary to his

testimony (and the testimony of several other witnesses), the victim indeed

was carrying a gun. In its detailed, eight-page, well-reasoned order, the trial

court concluded that, even if the assertions in the victim’s affidavit were true,

the outcome of the trial would have been no different because, at trial, Pickett

testified that he did not see the victim holding any weapon.

We, therefore, agree with the trial court that the victim’s recantation is

immaterial to Pickett’s guilty verdict. See Stephens v. State, 829 So. 2d 945,

2 945-46 (Fla. 1st DCA 2002) (recognizing that (i) recantation evidence is a

type of newly discovered evidence that “must be such that it would probably

produce an acquittal on retrial,” and (ii) “an evidentiary hearing in the context

of recantations” is not required where the recantation affidavit is immaterial

to the verdict).

As to Pickett’s assertion that he was the victim of ineffective assistance

of trial counsel, we agree with the trial court that none of Pickett’s asserted

grounds meets the standards of Strickland v. Washington, 466 U.S. 687

(1984).

Affirmed.