MAURICE AVERY STILLS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-5310

_____________________________/

Opinion filed January 20, 2015.

An appeal from the Circuit Court for Duval County.

J. Bradford Stetson, Judge.

Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public 

Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney 

General, Tallahassee, for Appellee.

PER CURIAM.

Appellant, Maurice Avery Stills, appeals his judgment and sentence for armed 

robbery and raises four issues on appeal, only one of which warrants discussion. For 

the reasons that follow, we agree with Appellant that the trial court erred by denying
his amended motion for new trial based on a newly discovered evidence claim and,

therefore, reverse and remand with instructions. We affirm as to the remaining 

issues without further comment. 

At Appellant’s trial for armed robbery, the State’s theory of the case was that 

Appellant, Anton Watson, Jamiel Rivers, and Nelson Williamson made plans to rob 

the gas station where Mr. Watson worked; that while Mr. Watson was working, 

Appellant and Mr. Williamson robbed the gas station at gunpoint; and that Mr. 

Rivers drove the getaway car. Mr. Watson and Mr. Rivers both testified that 

Appellant and Mr. Williamson were the gunmen and Mr. Rivers drove Appellant’s 

car, but their testimonies conflicted in several respects and minimized their own 

involvement. At the time of trial, Mr. Watson and Mr. Rivers had pled guilty to the 

armed robbery, as well as to tampering with evidence pursuant to their unsuccessful 

attempt at destroying the gas station’s surveillance video, and were awaiting 

sentencing. When Appellant’s vehicle was apprehended shortly after the crime, 

Appellant was the driver and Mr. Williamson was the passenger. The State 

presented evidence that the two guns found in Appellant’s glove compartment were 

the firearms involved in the robbery, but did not contain his DNA. The State also 

produced evidence that Appellant was the major contributor to the DNA mixture 

found on one of the gloves that was used during the robbery, but Appellant testified 

that those were his work gloves. Appellant further testified that Mr. Rivers and Mr. 

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Williamson robbed the gas station and he drove his vehicle to and from the scene of 

the robbery without advance knowledge of the crime. The trial court instructed the 

jury on the crime of armed robbery, as well as on the law of principals and the lesserincluded offense of theft. The jury returned a verdict finding Appellant guilty of 

robbery, and made specific findings that Appellant carried, but did not actually 

possess a firearm during the commission of the offense. 

Prior to sentencing, Appellant filed an amended motion for new trial based on 

a newly discovered evidence claim, wherein he argued that following his trial, he 

received a letter from Mr. Williamson stating that Appellant did not participate in 

the robbery and had no advance knowledge of it. Appellant represented in his 

motion that the evidence could not have been obtained at the time of his trial because 

Mr. Williamson’s case was still pending and thus he had the right to remain silent. 

Appellant argued that the evidence likely would have changed the jury’s verdict 

because it pertained to the elements of armed robbery as a principal. 

At the evidentiary hearing on the newly discovered evidence claim, Mr. 

Williamson testified in part that prior to Appellant’s trial, he wrote three letters to 

Appellant, which he gave to fellow inmates for immediate delivery to Appellant. 

Mr. Williamson does not know whether the letters were actually delivered to 

Appellant, and he believes the letter in the defense’s possession is his second letter. 

Mr. Williamson further testified that he, Mr. Watson, and Mr. Rivers planned the 

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robbery; he and Mr. Rivers robbed the gas station; and Appellant drove his car to 

and from the gas station, but did not participate in the robbery and did not know 

about it in advance. Appellant testified in part that he received Mr. Williamson’s 

letter after his trial, and had he received it earlier, he would have provided it to his 

attorney. The trial court denied the amended motion for new trial, and subsequently 

adjudicated Appellant guilty of armed robbery and sentenced him to five years’ 

imprisonment, with credit for time served. This appeal followed.

A trial court’s decision on a motion for new trial based on newly discovered 

evidence is reviewed for an abuse of discretion. Aguirre-Jarquin v. State, 9 So. 3d 

593, 603 (Fla. 2009). When a trial court rules on a newly discovered evidence claim 

after an evidentiary hearing, its findings on questions of fact, the credibility of 

witnesses, and the weight of the evidence are reviewed for competent, substantial 

evidence, whereas its application of the law to the facts is reviewed de novo. Pittman 

v. State, 90 So. 3d 794, 814 (Fla. 2011). To prevail on a newly discovered evidence 

claim, the defendant must establish: (1) “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,” 

and (2) “‘the newly discovered evidence must be of such nature that it would 

probably produce an acquittal on retrial.’” Johnston v. State, 27 So. 3d 11, 18 (Fla. 

2010) (quoting Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)). 

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With regard to the first prong, “Florida courts have held that evidence can be 

treated as newly discovered where it is ‘based on newly available testimony of 

defendants who were previously unwilling to testify.’” Brantley v. State, 912 So. 2d 

342, 342-43 (Fla. 3d DCA 2005) (rejecting the State’s argument that the codefendant’s affidavit did not qualify as newly discovered evidence because the codefendant was known to the defense at the time of trial and reasoning that

“[a]ccording to the Rule 3.850 motion, defense counsel tried to obtain the 

cooperation of co-defendant [], but co-defendant [] refused. Based on the limited 

record before us, it appears that defense counsel could not have procured codefendant[’s] [] testimony on account of the Fifth Amendment privilege against self 

incrimination”) (quoting Totta v. State, 740 So. 2d 57, 58 (Fla. 4th DCA 1999)); see 

also Lowe v. State, 2 So. 3d 21, 39 (Fla. 2008) (finding that the witness’s testimony 

at the evidentiary hearing on a motion to suppress met the first prong of the Jones

standard “because her testimony about what happened . . . did not change until 

postconviction proceedings”); Kormondy v. State, 983 So. 2d 418, 438-39 (Fla. 

2007) (affirming the denial of a new trial based on the second prong of the Jones

standard and agreeing with the trial court that the first prong was met where the codefendant did not testify at the appellant’s trial, subsequently testified to the contrary 

at his own trial, and “only recently made the statement that is at issue here”).

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The second prong of the standard is satisfied if the newly discovered evidence 

“weakens the case against [the defendant] so as to give rise to a reasonable doubt as 

to his culpability.” Johnston, 27 So. 3d at 18-19. Specifically, 

“in determining whether the [newly discovered] evidence 

compels a new trial under [Jones v. State, 591 So. 2d 911 (Fla. 1991)], 

the trial court must ‘consider all newly discovered evidence which 

would be admissible,’ and must ‘evaluate the weight of both the newly 

discovered evidence and the evidence which was introduced at the 

trial.’” This determination includes “whether the evidence goes to the 

merits of the case or whether it constitutes impeachment evidence. The 

trial court should also determine whether the evidence is cumulative to 

other evidence in the case. The trial court should further consider the 

materiality and relevance of the evidence and any inconsistencies in the 

newly discovered evidence.”

Nordelo v. State, 93 So. 3d 178, 186 (Fla. 2012) (internal citations omitted).

In the present case, the trial court did not make a factual finding as to whether 

Mr. Williamson’s letter constituted newly discovered evidence. Instead, the court 

determined that “[e]ven assuming that it may have been newly discovered evidence, 

the Court does not find that the proper evidence would have likely changed the result 

of the jury trial in light of all of the circumstances . . . .” We disagree. 

Importantly, while the jury’s verdict demonstrates that it rejected Mr. 

Watson’s and Mr. Rivers’s testimony as to Appellant’s role as a gunman, it also 

demonstrates its rejection of Appellant’s claim that he had no advance knowledge 

of the robbery.1

 The contents of Mr. Williamson’s letter and testimony pertain to 

1 The trial court instructed the jury in part that Appellant “cannot be found to have 

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the merits of the case. Although Mr. Williamson’s testimony is inconsistent with 

the trial testimony of Mr. Watson and Mr. Rivers, it is consistent with Appellant’s 

testimony that he did not participate in and had no advance knowledge of the 

robbery. We conclude that the evidence at issue weakens the case against Appellant 

so as to give rise to a reasonable doubt about his culpability, and the trial court erred 

by finding to the contrary. Because, however, the trial court did not make a factual 

finding as to whether the evidence was newly discovered, we reverse and remand 

with instruction that the trial court make a factual finding as to whether the evidence 

is newly discovered. See Hunter v. State, 87 So. 3d 1273, 1275 (Fla. 1st DCA 2012)

(“[A] fundamental principle of appellate procedure is that an appellate court is not 

empowered to make findings of fact.”); see also Featured Props., LLC v. BLKY, 

LLC, 65 So. 3d 135, 137 (Fla. 1st DCA 2011) (“‘Sitting as an appellate court, we 

actually possessed a firearm if you believe that he was a principal to the crime 

charged, who did not personally possess a firearm.” In light of the jury’s verdict, 

the parties agree that Appellant was convicted as a principal. See Hall v. State, 100 

So. 3d 288, 289 (Fla. 4th DCA 2012) (“To convict under a principals theory, the 

State is required to prove that ‘the defendant had a conscious intent that the criminal 

act be done and . . . the defendant did some act or said some word which was intended 

to and which did incite, cause, encourage, assist, or advise the other person or 

persons to actually commit or attempt to commit the crime.’ ‘[T]he getaway driver 

who has prior knowledge of the criminal plan and is waiting to help the robbers 

escape’ is clearly guilty of the robbery under a principals theory. But, ‘[n]either mere 

knowledge that an offense is being committed nor presence at the scene of the crime 

and flight therefrom are sufficient to establish participation with the requisite 

criminal intent.’”) (Internal citations omitted).

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are precluded from making factual findings ourselves in the first instance.’”). If the 

trial court determines that the evidence was newly discovered, Appellant will be 

entitled to a new trial. 

AFFIRMED in part, REVERSED in part, and REMANDED with 

instructions.

LEWIS, C.J., WOLF and ROBERTS, JJ., CONCUR.

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