DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PATRICK PLACIDE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-2744

[April 8, 2015]

Appeal of order denying rule 3.850 motion from the Circuit Court for 

the Seventeenth Judicial Circuit, Broward County; Bernard I. Bober, 

Judge; L.T. Case No. 9120130CF10A.

Patrick J. Curry, Fort Lauderdale, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Catherine Linton, 

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We affirm the trial court’s summary denial of Patrick Placide’s untimely 

and successive motion for postconviction relief. Placide’s motion claimed 

that he has recently discovered new evidence that jurors allegedly engaged 

in misconduct during his trial in 1992. We conclude that the affidavit 

alleged to constitute the new evidence is inherently incredible and not 

properly sworn. In addition, Placide fails to establish a valid exception to 

the time limitation, as he does not show that he exercised any diligence in 

investigating this claim, which could have been discovered with due 

diligence.

Placide was convicted after jury trial in July 1992 for first degree 

murder, attempted first degree murder, robbery, and burglary of a 

dwelling. He was sentenced to life for the murder and terms of years on 

the other counts. This Court affirmed the convictions and sentences in 

1995. Placide v. State, 652 So. 2d 831 (Fla. 4th DCA 1995) (table)

(mandate issued April 21, 1995). The two-year time limit for filing a 

postconviction motion expired in 1997. Placide has filed a number of 
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postconviction challenges and appeals, including three prior appeals from 

the denial of rule 3.850 motions.1

In April, 2014, Placide filed this successive and untimely rule 3.850 

motion alleging newly discovered evidence and requesting a new trial 

based on juror misconduct. He claims that in 2013 his family was 

discussing whether to continue retaining counsel for him for a federal 

habeas corpus petition challenging the use of restraints during trial. A 

family friend, Marie Blackwell, who had allegedly attended the trial, 

happened to be present when two jurors were discussing Placide’s 

appearance in shackles, the jurors indicating that he must be dangerous. 

The motion was sworn and accompanied by an affidavit from Blackwell.

In the affidavit, Blackwell avers that one female juror questioned the 

other as to, “Why Patrick was shackled down like that?” The other 

allegedly responded, “He must be guilty or very dangerous.” Blackwell 

asserts that she was upset and told them he was innocent. She then avers, 

“I was then worried I might get in trouble for speaking in his defense. . . I 

wish I would’ve said something sooner. I recently became informed that 

as a juror discussing trial matters outside of the trial is against the law.” 

Placide alleges that he first learned of Blackwell’s statement in January 

2014.

As explained in the state’s response below, defendant raised an issue 

regarding the use of restraints during trial in his successive rule 3.850 

motion in 2005. Placide has been aware that he was shackled since the 

time of trial. The new evidence in this case is the affidavit from a family 

friend who allegedly overheard jurors talking about the defendant being 

shackled during trial in 1992. She allegedly revealed this for the first time 

in 2013 – more than twenty years later.

The trial court denied the motion based on the State’s response and 

denied rehearing. This appeal followed.

Newly discovered facts can provide an exception to the two-year time 

limit for bringing a postconviction motion where:

(1) the facts on which the claim is predicated were unknown 

to the movant or the movant’s attorney and could not have 

been ascertained by the exercise of due diligence, and the 

claim is made within 2 years of the time the new facts were or 

1 Case numbers 4D03-2945, 4D07-3768, and 4D08-1149.
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could have been discovered with the exercise of due 

diligence[.]

Fla. R. Crim. P. 3.850(b)(1). Placide relies on this exception to excuse the 

untimeliness of his claim of alleged juror misconduct. Rule 3.850(c) 

requires: “If the defendant is filing a newly discovered evidence claim based 

on recanted trial testimony or on a newly discovered witness, the 

defendant shall include an affidavit from that person as an attachment to 

his or her motion.” We conclude that Blackwell’s affidavit, which Placide 

attached to his motion, is inherently incredible and not properly sworn.

The Florida Supreme Court, and this Court, have recognized that, 

“there may be cases where, from the face of the affidavit, it can be 

determined that the affidavit is ‘inherently incredible.’” McLin v. State, 827 

So. 2d 948, 955 (Fla. 2002) (citing Robinson v. State, 736 So. 2d 93, 93 

(Fla. 4th DCA 1999)); see also Andrews v. State, 919 So. 2d 552, 553 (Fla. 

4th DCA 2005). This is such a case.

Blackwell in her affidavit asserts that she witnessed the alleged 

conversation between jurors in the hallway during “the trial recess” in 

1992. First, Blackwell does not specify at what point in the proceedings 

she allegedly witnessed this conversation. Nevertheless, this alone does 

not make the affidavit inherently incredible. The key factor that leads us 

to this conclusion is the extreme length of time that elapsed between the 

alleged event and the witness’s reporting.

Blackwell asserts that she witnessed jurors discussing the case in 1992 

and that one juror allegedly expressed the belief that the defendant was 

guilty and must be dangerous because he was shackled. Although she 

claims that she believed in Placide’s innocence and defended it to the 

jurors, Blackwell alleges she did not report this to anyone until 2013 when 

she happened to be at Placide’s house when his family was discussing the 

shackling issue. Blackwell states she did not come forward sooner 

because she allegedly did not know it was improper for the jurors to have 

this discussion. We are asked to believe that she thought it was 

appropriate for jurors to prejudge a defendant’s guilt and dangerousness. 

Blackwell asserts that she did not report the conversation to the judge, 

because she thought she would get in trouble for speaking in his defense. 

This does not explain, however, why she would not have revealed this 

information to Placide’s trial counsel or to Placide or Placide’s family 

members in the twenty-plus years that followed. The circumstances are 

simply beyond what any reasonable person could accept as credible.
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Contributing to our conclusion that the affidavit is incredible, we note 

that Blackwell has not sworn to her statement under penalty of perjury. 

The affidavit states: “I SWEAR OR AFFIRM THAT THE ABOVE AND 

FOREGOING REPRESENTATIONS ARE TRUE AND CORRECT TO THE 

BEST OF MY INFORMATION, KNOWLEDGE, AND BELIEF.” This 

statement would be insufficient to constitute a signed, written declaration 

under section 92.525(2), Florida Statutes (2014). Among other things, a 

written declaration must state that it is made “[u]nder penalties of 

perjury.” § 92.525(2), Fla. Stat. (2014). The qualifying language, “to the 

best of my information, knowledge, and belief,” is an insufficient oath to 

support a postconviction motion. State v. Shearer, 628 So. 2d 1102, 1103 

(Fla. 1993) (holding that the qualifying language that allegations were “true 

and correct to the best of his knowledge” was insufficient).

The affidavit is further insufficient because it does not reflect that it 

was sworn to before an individual authorized to administer oaths.

“An affidavit is by definition a statement in writing under an 

oath administered by a duly authorized person. . . .” Youngker 

v. State, 215 So. 2d 318, 321 (Fla. 4th DCA 1968) (citing 

Black's Law Dictionary, (4th ed.)). “An oath is an unequivocal 

act, before an officer authorized to administer oaths, by which 

the person knowingly attests to the truth of a statement and 

assumes the obligations of an oath.” State v. Johnston, 553 

So. 2d 730, 733 (Fla. 2d DCA 1989) (citations omitted); see 

also Youngker, 215 So. 2d at 321 (“An oath may be 

undertaken by any unequivocal act in the presence of an 

officer authorized to administer oaths by which the declarant 

knowingly attests the truth of a statement and assumes the 

obligation of an oath.”) (citation omitted).

Crain v. State, 914 So. 2d 1015, 1019 (Fla. 5th DCA 2005). Section 

92.50(1), Florida Statutes (2014), recognizes that an affidavit must be 

sworn to before a person authorized to administer oaths. Id.; see also 

Jackson v. State, 881 So. 2d 666, 668 (Fla. 5th DCA 2004).

Blackwell’s purported oath contains improper qualifying language that 

equivocates as to the truth of the statement and is not made under penalty 

of perjury. The statement signed by the notary provides only: “I, the 

undersigned Notary Public, do hereby affirm that Marie Blackwell 

personally appeared before me on the 20th of MARCH 2014, and signed 

the above Affidavit as his [sic] free and voluntary act and deed.” The notary 

affirms merely that Blackwell signed the statement, not that she made the 
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statement under oath. Thus, the statement is not properly verified and is 

insufficient to support a newly-discovered-evidence claim.

Finally, we conclude that Placide’s claim fails on its face as the issue 

could have been discovered with due diligence and raised in a timely 

manner. Placide does not allege anywhere that he exercised any diligence 

in investigating possible juror misconduct at any time in the twenty years 

before Blackwell made her statement. Yet, Placide first raised his claim 

regarding shackling in 2005. The thrust of that claim was that the jury 

may have been prejudiced against him based on seeing him in shackles 

during trial. Placide does not allege that he used any diligence in seeking 

to discover whether any jurors saw him in shackles when he brought those 

proceedings in state and federal courts. The information in this case 

comes in the form of hearsay from a family friend, not from a juror, and 

there is no allegation that this friend was unavailable to Placide, Placide’s 

lawyer, or his family in the more than twenty years before the information 

materialized in 2013.

Accordingly, we affirm the summary denial of the postconviction 

motion.

Affirmed.

WARNER, GERBER and CONNER, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.