Macias v. State

143 So. 3d 952, 2014 WL 2740387, 2014 Fla. App. LEXIS 9207

• Court: District Court of Appeal of Florida
• Decided: June 18, 2014
• Docket: No. 4D14-0375
• Status: Published

Opinion

PER CURIAM.

We affirm the order denying appellant’s second motion for postconviction relief based upon newly discovered evidence which would have impeached the credibility of the victim.¹ Appellant has not shown that the evidence upon which the motion was based was “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), receded from on other grounds by Coleman v. State, 64 So.3d 1210, 1225-27 (Fla.2011) (emphasis supplied). Nor has he shown that the evidence probably would result in an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998).

WARNER, TAYLOR and LEVINE, JJ., concur.

1 . The facts of this case appear in our prior opinion. See Macias v. State, 959 So.2d 782 (Fla. 4th DCA), rev. denied, 973 So.2d 1122 (Fla.2007).