FREDERICK LAWRENCE COLE, III v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: August 16, 2023
• Docket: 22-2110
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 16, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-2110 Lower Tribunal No. F18-17745 ________________

Frederick Lawrence Cole, III, 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, Thomas J. Rebull, Judge.

Frederick Lawrence Cole, III, in proper person.

Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.

Before LOGUE, C.J., and HENDON, and LOBREE, JJ.

PER CURIAM. Affirmed. See Long v. State, 183 So. 3d 342, 345 (Fla. 2016) (“If a

defendant seeks to make a newly discovered evidence claim, he must timely

file a postconviction motion based on newly discovered evidence to vacate

his judgment and sentence and meet a two-prong test ... ‘First, the evidence

must not have been known by the trial court, the party, or counsel at the time

of trial, and it must appear that the defendant or defense counsel could not

have known of it by the use of diligence. Second, the newly discovered

evidence must be of such nature that it would probably produce an acquittal

on retrial.’” (quoting Tompkins v. State, 994 So. 2d 1072, 1086 (Fla. 2008));

Scott v. Dugger, 634 So. 2d 1062, 1065 (Fla. 1993) (“[W]e find that the

evidence asserted as new in these proceedings is not newly discovered

evidence.”).