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
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exculpating him and explained that he could not have produced the codefendant’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 codefendant’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.”). 
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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).
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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.