FRANZ RIGG v. THE STATE OF FLORIDA

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 18, 2023 Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0603 Lower Tribunal No. F01-292 ________________

Franz Rigg, 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, Michelle Delancy, Judge.

Daniel A. Callahan, P.A., and Daniel A. Callahan (Fort Lauderdale), for appellant.

Ashley Moody, Attorney General, and Sandra Lipman, Senior Assistant Attorney General, for appellee.

Before EMAS, MILLER and LOBREE, JJ.

PER CURIAM. Affirmed. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (“Two

requirements must be met in order for a conviction to be set aside on the

basis of 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.”); Fla. R. Crim. P. 3.850(b)(1) (providing that

a claim for postconviction relief must be filed no later than two years after the

judgment and sentence become final “unless it alleges that. . . the facts on

which the claim is predicated were unknown to the movant or the movant’s

attorney and could not have been ascertained by the exercise of due

diligence, and the claim is made within 2 years of the time the new facts were

or could have been discovered with the exercise of due diligence”).