Johnson v. State of Florida

District Court of Appeal of Florida

Johnson v. State of Florida

649 So. 2d 948, 1995 Fla. App. LEXIS 1294, 1995 WL 59585

CourtDistrict Court of Appeal of Florida

DecidedFebruary 15, 1995

DocketNo. 94-2370

StatusPublished

Cited by2 cases

This text of 649 So. 2d 948 (Johnson v. State of Florida) 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

Johnson v. State of Florida, 649 So. 2d 948, 1995 Fla. App. LEXIS 1294, 1995 WL 59585 (Fla. Ct. App. 1995).

Pincite

Opinion

PER CURIAM.

Mark Johnson appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant’s 3.850 motion was accompanied by the affidavit of a codefendant who entered a plea and testified at trial. The affidavit states that the affiant’s trial testimony “was colored and was inaccurate.” The affidavit does not state what the affiant’s testimony was, nor does the affidavit explain what were the inaccuracies. The affidavit is much too conclusory to call for an evidentiary hearing. See Williamson v. Dugger, 651 So.2d 84, 89 (Fla.1994) (affidavits insufficient to require an evidentiary hearing); Johnson v. Singletary, 647 So.2d 106, 110 (1994) (“The crucial question is whether the contents of the affidavits are of such a nature that they would probably produce an acquittal on retrial.”); Jones v. State, 591 So.2d 911, 915-16 (Fla.1991) (In order to provide relief, newly discovered evidence must be such that it would have probably resulted in an acquittal had it been introduced at trial). Our affir-mance on this point is without prejudice to appellant to refile the motion and offer a particularized affidavit.

Appellant’s claim of error in the jury instructions is an issue which is cognizable by direct appeal, not by motion for postconviction relief. As to appellant’s final point, during the pendency of this appeal the trial court complied with this court’s mandate in [949]*949Johnson v. Singletary, 625 So.2d 1251 (Fla. 3d DCA 1993). That issue is now moot.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

Mark Johnson appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant’s 3.850 motion was accompanied by the affidavit of a codefendant who entered a plea and testified at trial. The affidavit states that the affiant’s trial testimony “was colored and was inaccurate.” The affidavit does not state what the affiant’s testimony was, nor does the affidavit explain what were the inaccuracies. The affidavit is much too conclusory to call for an evidentiary hearing. See Williamson v. Dugger, 651 So.2d 84, 89 (Fla.1994) (affidavits insufficient to require an evidentiary hearing); Johnson v. Singletary, 647 So.2d 106, 110 (1994) (“The crucial question is whether the contents of the affidavits are of such a nature that they would probably produce an acquittal on retrial.”); Jones v. State, 591 So.2d 911, 915-16 (Fla.1991) (In order to provide relief, newly discovered evidence must be such that it would have probably resulted in an acquittal had it been introduced at trial). Our affir-mance on this point is without prejudice to appellant to refile the motion and offer a particularized affidavit.

Appellant’s claim of error in the jury instructions is an issue which is cognizable by direct appeal, not by motion for postconviction relief. As to appellant’s final point, during the pendency of this appeal the trial court complied with this court’s mandate in [949]*949Johnson v. Singletary, 625 So.2d 1251 (Fla. 3d DCA 1993). That issue is now moot.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

649 So. 2d 948, 1995 Fla. App. LEXIS 1294, 1995 WL 59585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-of-florida-fladistctapp-1995.

Opinion

Related

Cite This Page — Counsel Stack