JULIUS ERWING BLACK vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: April 8, 2022
• Docket: 21-2144
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

JULIUS ERWING BLACK,

Appellant,

v. Case No. 5D21-2144 LT Case No. 2013-CF-1000-B STATE OF FLORIDA,

Appellee. ________________________________/

Decision filed April 8, 2022

3.850 Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

Julius Erwing Black, Perry, pro se.

Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Appellant Julius Erwing Black appeals the summary denial of his

Florida Rule of Criminal Procedure 3.850 motion for postconviction relief in

which he alleged newly discovered evidence. In the motion, Appellant

claimed that one of his co-defendants recently made new statements exculpating him and explained that he could not have produced the co-

defendant’s statements earlier because she had previously refused to testify

or provide a deposition out of fear of incriminating herself and her brother,

another co-defendant. After summarizing other witnesses’ trial testimony,

the trial court concluded the co-defendant lacked credibility and summarily

denied Appellant’s motion. We reverse.

Generally, it is inappropriate to determine a witness’s credibility without

a hearing. See, e.g., Utile v. State, 235 So. 3d 1045, 1048 (Fla. 5th DCA

2018) (observing that factual matters generally require an evidentiary

hearing to allow a credibility determination). Had Appellant’s motion

attached a sworn affidavit from the co-defendant, a hearing to assess the co-

defendant’s credibility would have been appropriate. But here, no affidavit

was attached to the motion, and the trial court never addressed the lack of

an affidavit or Appellant’s explanation for why the affidavit could not be

obtained. See Fla. R. Crim. P. 3.850(c) (“If the defendant is filing a newly

discovered evidence claim based on . . . a newly discovered witness, the

defendant shall include an affidavit from that person as an attachment to his

or her motion. . . . If the affidavit is not attached to the motion, the defendant

shall provide an explanation why the required affidavit could not be

obtained.”).

2 Appellant’s explanation for not attaching the affidavit was that he was

transferred between correctional institutions and has lost all contact

information for this co-defendant. Assuming the veracity of Appellant’s

representation that he discovered the co-defendant’s statements on June 4,

2021, 1 Appellant has until June 4, 2023, to secure and file the affidavit. See

Fla. R. Crim. P. 3.850(b)(1) (requiring presentation of newly discovered

evidence claims within two years of when the facts were or could have been

reasonably discovered). The trial court, rather than reviewing Appellant’s

motion for sufficiency, i.e., whether Appellant’s explanation for the lack of

affidavit was sufficient, proceeded to a determination of the co-defendant’s

credibility in order to rule on the merits of Appellant’s motion. This was error.

See Utile, 235 So. 3d at 1048.

On remand, the trial court may still deny Appellant’s motion as

insufficient if the court first evaluates and then rejects Appellant’s explanation

for the lack of an affidavit. However, if the court does reject Appellant’s

explanation, then Appellant would have until June 4, 2023, to obtain a sworn

affidavit from the proposed witness. See Fletcher v. State, 53 So. 3d 1249,

1252 (Fla. 4th DCA 2011). Should the trial court accept Appellant’s

1 See, e.g., Freeman v. State, 761 So. 2d 1055, 1065 n.9 (Fla. 2000) (requiring allegations in postconviction relief motions to be taken as true unless conclusively rebutted by record).

3 explanation for the lack of an affidavit, then the trial court should either hold

an evidentiary hearing or attach record excerpts that conclusively refute

Appellant’s claim. See Fla. R. Crim. P. 3.850(f) (setting procedures for

addressing claims).

Accordingly, we reverse and remand for further proceedings not

inconsistent with this opinion.

REVERSED and REMANDED for further proceedings.

EVANDER, NARDELLA and WOZNIAK, JJ., concur.