Scott v. State

122 So. 3d 416, 2013 WL 4726840, 2013 Fla. App. LEXIS 14101

Opinion

PER CURIAM.

We find the trial court’s order denying postconviction relief was proper, since neither the affidavit asserted to be newly discovered evidence nor appellant’s motion for post-conviction relief stated the factual basis for the affiant’s discovery as a witness. Appellant has not shown either the timeliness of the motion (two years from the date of discovery of the “new evidence”) or that the defense in his case exercised due diligence in finding this evidence. Burns v. State, 110 So.3d 96, 97 (Fla. 2d DCA 2013). However, the denial should have been without prejudice in order to allow appellant a reasonable period of time to file an amended motion, if he can do so in good faith. Id. Appellant shall be granted sixty days from the date of this opinion to submit an amended motion in the trial court.

Affirmed without prejudice.

DAMOORGIAN, C.J., STEVENSON and LEVINE, JJ., concur.