Supreme Court of Florida ____________
No. SC20-1805 ____________
TERANCE VALENTINE, Appellant,
vs.
STATE OF FLORIDA, Appellee.
April 7, 2022
PER CURIAM.
Terance Valentine, a prisoner under sentence of death,
appeals the circuit court’s order summarily denying his second
successive motion for postconviction relief, filed under rule 3.851 of
the Florida Rules of Criminal Procedure.1 For the reasons that
follow, we affirm.
I. Background
Valentine brutally tortured and murdered Ferdinand Porche in
1988. The evidence from Valentine’s third trial establishes the
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. following sequence of events on the day Porche was murdered.
Porche arrived home from work in the early afternoon. Upon his
entry into the home, Valentine shot him in the back, paralyzing him
from the waist down. Valentine announced, “[T]his is my revenge.”
Valentine v. State, 688 So. 2d 313, 315 (Fla. 1996).
Valentine then forced Porche to crawl into a bedroom “where
he found his wife nude, bound, and gagged and his baby crying and
covered in blood.” Id. In that bedroom, Valentine bludgeoned
Porche in the head at least three times with a gun, which broke
Porche’s jaw and caused him to lose several teeth. After that
beating, Valentine told Porche, “I’m gonna kill you, but you’re gonna
suffer. This is not going to be easy.” Id. He then stabbed Porche in
the buttocks and bound him with baling wire.
Following the brutal attack in the home, Valentine took Porche
and his wife 2 to a remote location nine miles away. There,
Valentine again confronted Porche who was bound, helpless, and in
severe agony. Valentine pointed a gun at one of Porche’s eyes from
2. We are aware that Livia Romero was not legally married to Porche. But we use the designation “wife” as it is in keeping with our past opinions in Valentine’s case.
-2- point-blank range and then pulled the trigger. That shot finally
killed Porche. Remarkably, Porche’s wife—whom Valentine also
shot in the head—survived and would later become a key State
witness.
The State charged Valentine with the first-degree murder of
Porche and other crimes. Valentine’s first trial resulted in a
mistrial. Following his second trial, a jury found him guilty of
first-degree murder and recommended a sentence of death.
However, due to a jury-selection error, we reversed Valentine’s
convictions and vacated his sentences. Valentine v. State, 616 So.
2d 971, 974-75 (Fla. 1993).
On remand, a jury again found Valentine guilty of several
crimes, including first-degree murder. Valentine waived a
penalty-phase jury, and the trial court ultimately sentenced him to
death. We affirmed the first-degree murder conviction and death
sentence. Valentine, 688 So. 2d at 318.
Since that time, Valentine has sought relief in both state and
federal court, but has had no success in either forum.
See Valentine v. State, 98 So. 3d 44, 58 (Fla. 2012) (affirming denial
of initial postconviction motion and denying habeas petition);
-3- Valentine v. State, 296 So. 3d 375, 376 (Fla. 2020) (affirming
summary denial of first successive postconviction motion).
Valentine has now filed his second successive motion for
postconviction relief asserting three claims that all involve an
eyewitness named Terry Spain who recently completed an affidavit.
Valentine’s primary claim seeks relief on the ground that Spain’s
affidavit constitutes newly discovered evidence which entitles him to
a new trial. In his affidavit, Spain states that he saw a white male
standing roughly 40 to 50 yards away from him. After hearing two
gunshots, Spain fled from the scene and called for police
assistance—ultimately speaking with police on multiple occasions.
Later, during Valentine’s first trial, law enforcement provided Spain
a hotel room, meals, and $300 in cash. According to the affidavit,
Spain did not testify at that trial or the subsequent trials, nor did
trial counsel or any defense investigator ever contact him.
In addition to the newly discovered evidence claim, Valentine
alleged that the State violated Brady and Giglio in its handling of
Spain during the first trial. See Brady v. Maryland, 373 U.S. 83
(1963); Giglio v. United States, 405 U.S. 150 (1972).
-4- The circuit court summarily denied Valentine’s motion in its
entirety. As an initial matter, the court ruled that all the claims
were procedurally barred for not being timely raised. In addition,
applying the standard set forth in Jones v. State, 709 So. 2d 512
(Fla. 1998), the court ruled that the allegations in the affidavit did
not constitute newly discovered evidence, and, even if they did, that
evidence was not of such a nature as would likely produce an
acquittal on retrial—stressing the overwhelming evidence of guilt.
As for the other claims, the court found that the record refuted the
Brady claim and that the Giglio claim was legally insufficient.
This appeal follows.
II. Analysis
Valentine argues that the circuit court erred in denying his
postconviction motion without first holding an evidentiary hearing.
We disagree.
“A circuit court should hold an evidentiary hearing on a rule
3.851 motion ‘whenever the movant makes a facially sufficient
claim that requires a factual determination.’ ” Rogers v. State, 327
So. 3d 784, 787 (Fla. 2021) (quoting Pardo v. State, 108 So. 3d 558,
-5- 560 (Fla. 2012)).3 In contrast, a circuit court may summarily deny
a claim that is legally insufficient or refuted by the record. Id. at
787-88; McDonald v. State, 296 So. 3d 382, 383 n.2 (Fla. 2020).
With these principles in mind, we turn to Valentine’s claims.
As noted above, Valentine’s first claim sought a new guilt
phase based on newly discovered evidence. To be facially sufficient,
a claim of newly discovered evidence must meet the two-part Jones
test. We have described that test as follows:
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.
Long v. State, 183 So. 3d 342, 345 (Fla. 2016) (quoting Tompkins v.
State, 994 So. 2d 1072, 1086 (Fla. 2008)).
We agree with the circuit court that the record conclusively
refutes Valentine’s newly discovered evidence claim. That claim is
based on Spain’s affidavit. However, as the circuit court noted,
police reports and the transcript from the second trial contain
3. “The standard of review here is de novo.” Rogers, 327 So.
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Supreme Court of Florida ____________
No. SC20-1805 ____________
TERANCE VALENTINE, Appellant,
vs.
STATE OF FLORIDA, Appellee.
April 7, 2022
PER CURIAM.
Terance Valentine, a prisoner under sentence of death,
appeals the circuit court’s order summarily denying his second
successive motion for postconviction relief, filed under rule 3.851 of
the Florida Rules of Criminal Procedure.1 For the reasons that
follow, we affirm.
I. Background
Valentine brutally tortured and murdered Ferdinand Porche in
1988. The evidence from Valentine’s third trial establishes the
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. following sequence of events on the day Porche was murdered.
Porche arrived home from work in the early afternoon. Upon his
entry into the home, Valentine shot him in the back, paralyzing him
from the waist down. Valentine announced, “[T]his is my revenge.”
Valentine v. State, 688 So. 2d 313, 315 (Fla. 1996).
Valentine then forced Porche to crawl into a bedroom “where
he found his wife nude, bound, and gagged and his baby crying and
covered in blood.” Id. In that bedroom, Valentine bludgeoned
Porche in the head at least three times with a gun, which broke
Porche’s jaw and caused him to lose several teeth. After that
beating, Valentine told Porche, “I’m gonna kill you, but you’re gonna
suffer. This is not going to be easy.” Id. He then stabbed Porche in
the buttocks and bound him with baling wire.
Following the brutal attack in the home, Valentine took Porche
and his wife 2 to a remote location nine miles away. There,
Valentine again confronted Porche who was bound, helpless, and in
severe agony. Valentine pointed a gun at one of Porche’s eyes from
2. We are aware that Livia Romero was not legally married to Porche. But we use the designation “wife” as it is in keeping with our past opinions in Valentine’s case.
-2- point-blank range and then pulled the trigger. That shot finally
killed Porche. Remarkably, Porche’s wife—whom Valentine also
shot in the head—survived and would later become a key State
witness.
The State charged Valentine with the first-degree murder of
Porche and other crimes. Valentine’s first trial resulted in a
mistrial. Following his second trial, a jury found him guilty of
first-degree murder and recommended a sentence of death.
However, due to a jury-selection error, we reversed Valentine’s
convictions and vacated his sentences. Valentine v. State, 616 So.
2d 971, 974-75 (Fla. 1993).
On remand, a jury again found Valentine guilty of several
crimes, including first-degree murder. Valentine waived a
penalty-phase jury, and the trial court ultimately sentenced him to
death. We affirmed the first-degree murder conviction and death
sentence. Valentine, 688 So. 2d at 318.
Since that time, Valentine has sought relief in both state and
federal court, but has had no success in either forum.
See Valentine v. State, 98 So. 3d 44, 58 (Fla. 2012) (affirming denial
of initial postconviction motion and denying habeas petition);
-3- Valentine v. State, 296 So. 3d 375, 376 (Fla. 2020) (affirming
summary denial of first successive postconviction motion).
Valentine has now filed his second successive motion for
postconviction relief asserting three claims that all involve an
eyewitness named Terry Spain who recently completed an affidavit.
Valentine’s primary claim seeks relief on the ground that Spain’s
affidavit constitutes newly discovered evidence which entitles him to
a new trial. In his affidavit, Spain states that he saw a white male
standing roughly 40 to 50 yards away from him. After hearing two
gunshots, Spain fled from the scene and called for police
assistance—ultimately speaking with police on multiple occasions.
Later, during Valentine’s first trial, law enforcement provided Spain
a hotel room, meals, and $300 in cash. According to the affidavit,
Spain did not testify at that trial or the subsequent trials, nor did
trial counsel or any defense investigator ever contact him.
In addition to the newly discovered evidence claim, Valentine
alleged that the State violated Brady and Giglio in its handling of
Spain during the first trial. See Brady v. Maryland, 373 U.S. 83
(1963); Giglio v. United States, 405 U.S. 150 (1972).
-4- The circuit court summarily denied Valentine’s motion in its
entirety. As an initial matter, the court ruled that all the claims
were procedurally barred for not being timely raised. In addition,
applying the standard set forth in Jones v. State, 709 So. 2d 512
(Fla. 1998), the court ruled that the allegations in the affidavit did
not constitute newly discovered evidence, and, even if they did, that
evidence was not of such a nature as would likely produce an
acquittal on retrial—stressing the overwhelming evidence of guilt.
As for the other claims, the court found that the record refuted the
Brady claim and that the Giglio claim was legally insufficient.
This appeal follows.
II. Analysis
Valentine argues that the circuit court erred in denying his
postconviction motion without first holding an evidentiary hearing.
We disagree.
“A circuit court should hold an evidentiary hearing on a rule
3.851 motion ‘whenever the movant makes a facially sufficient
claim that requires a factual determination.’ ” Rogers v. State, 327
So. 3d 784, 787 (Fla. 2021) (quoting Pardo v. State, 108 So. 3d 558,
-5- 560 (Fla. 2012)).3 In contrast, a circuit court may summarily deny
a claim that is legally insufficient or refuted by the record. Id. at
787-88; McDonald v. State, 296 So. 3d 382, 383 n.2 (Fla. 2020).
With these principles in mind, we turn to Valentine’s claims.
As noted above, Valentine’s first claim sought a new guilt
phase based on newly discovered evidence. To be facially sufficient,
a claim of newly discovered evidence must meet the two-part Jones
test. We have described that test as follows:
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.
Long v. State, 183 So. 3d 342, 345 (Fla. 2016) (quoting Tompkins v.
State, 994 So. 2d 1072, 1086 (Fla. 2008)).
We agree with the circuit court that the record conclusively
refutes Valentine’s newly discovered evidence claim. That claim is
based on Spain’s affidavit. However, as the circuit court noted,
police reports and the transcript from the second trial contain
3. “The standard of review here is de novo.” Rogers, 327 So. 3d at 787 n.5.
-6- much of the information in Spain’s affidavit. Information available
from those sources clearly does not meet the first prong of Jones.
The only “new” information in the affidavit was that law
enforcement provided Spain a hotel room, meals, and $300 in cash
during Valentine’s first trial. However, the record demonstrates
that trial counsel was aware of Spain’s involvement in the case and
could have ascertained these additional facts if due diligence had
been exercised. See Rogers, 327 So. 3d at 788. Thus, Valentine
failed to meet prong one of the Jones test as to all the allegations in
Spain’s affidavit. 4 Accordingly, the circuit court properly denied
Valentine’s newly discovered evidence claim.
Valentine’s Brady claim fares no better. To prevail on a Brady
claim, Valentine must demonstrate that (1) favorable evidence
which is exculpatory or impeaching, (2) was suppressed by the
State, and (3) because the evidence was material, he was
prejudiced. See Sweet v. State, 293 So. 3d 448, 451 (Fla. 2020).
4. Based on our review of the record, we conclude that evidence of the State’s handling of Spain during Valentine’s first trial would not likely produce an acquittal on retrial—especially given the overwhelming evidence of guilt. Accordingly, the record also refutes the second prong of Valentine’s Jones claim.
-7- As noted above, Valentine’s Brady claim is also premised on
information in Spain’s affidavit—primarily the State’s handling of
Spain during Valentine’s first trial. However, Valentine does not
allege that the State prevented him from calling Spain at the third
trial—i.e., the trial resulting in the first-degree murder conviction he
is now challenging. Thus, at a minimum, Valentine failed to
demonstrate suppression of evidence in relation to the relevant
trial. Accordingly, the circuit court properly denied the Brady
claim. 5
5. As noted above, Valentine asserted a Giglio claim in his motion, but he failed to identify any false testimony by a state witness. See Jimenez v. State, 265 So. 3d 462, 479 (Fla. 2018). The circuit court found the claim legally insufficient. On appeal, Valentine has made no argument specifically challenging that ruling. Thus, he has abandoned any argument as to the denial of the claim. See Doorbal v. State, 983 So. 2d 464, 482-83 (Fla. 2008) (conclusory argument insufficient to support reversal); Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009) (en banc) (finding issues abandoned where appellant did not “address[] them in his brief”).
-8- III. Conclusion
For the foregoing reasons, we affirm the circuit court’s
summary denial of Valentine’s second successive motion for
postconviction relief.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Hillsborough County, Michelle Sisco, Judge – Case No. 291988CF012996000AHC
Marie-Louise Samuels Parmer and Maria DeLiberato of Parmer DeLiberato, P.A., Tampa, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Rick A. Buchwalter, Assistant Attorney General, Tampa, Florida,
for Appellee
-9-