Rodrick Wimblery v. The State of Florida

• Court: District Court of Appeal of Florida
• Decided: August 28, 2024
• Docket: 2023-0038
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 28, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0038 Lower Tribunal No. F15-3835 ________________

Rodrick Wimblery, Appellant,

vs.

The State of Florida, Appellee.

An appeal from the Circuit Court for Miami-Dade County, Alberto Milian, Judge.

Daniel J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.

Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.

Before SCALES, MILLER, and BOKOR, JJ.

PER CURIAM. Appellant, Rodrick Wimblery, appeals from an order denying his

motion for postconviction relief alleging newly discovered evidence. Putting

aside any failure to exercise due diligence, our review of the record yields

the conclusion the trial court’s finding that the claim did not meet “the second,

critical requirement of the two-part test established for newly discovered

evidence” is supported by competent, substantial evidence. Poff v. State, 41

So. 3d 1062, 1064 (Fla. 3d DCA 2010); see also Long v. State, 183 So. 3d

342, 345 (Fla. 2016) (“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 [a] nature

that it would probably produce an acquittal on retrial.”) (quoting Tompkins v.

State, 994 So. 2d 1072, 1086 (Fla. 2008)). “This Court, as an appellate body,

has no authority to substitute its view of the facts for that of the trial judge

when competent evidence exists to support the trial judge’s conclusion.”

State v. Spaziano, 692 So. 2d 174, 175 (Fla. 1997). Accordingly, we affirm

the order denying relief.

Affirmed.