FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-1422

LT Case No. 1990-CF-08397-A

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JEFFERY C. GREEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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3.850 appeal from the Circuit Court for Duval County.

Meredith Carbula, Judge.

Jeffery C. Green, Mayo, pro se. 

Ashley Moody, Attorney General, and Julian E. Markham, 

Assistant Attorney General, Tallahassee, for Appellee.

November 9, 2023

EISNAUGLE, J.

Appellant, Jeffery C. Green, appeals the summary denial of 

his Florida Rule of Criminal Procedure 3.850 motion alleging 

newly discovered evidence. We reverse as to Ground I, and 

otherwise affirm without further discussion.

In 1991, Appellant was convicted of first-degree murder and 

armed robbery. More than thirty years later, Appellant filed the 
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instant motion, attaching an affidavit purportedly made by a 

Julian Hawkins. In the affidavit, Hawkins alleges he saw 

Appellant at a “skate arena” on the night of the murder, from 

approximately 7:15 p.m. to 10:45 p.m. Based on this affidavit, the 

motion alleged that Appellant was not at the scene of the crime. 

The postconviction court summarily denied the claim, 

concluding that the affidavit was inherently incredible, based on 

the court’s skepticism that “someone—over thirty years later—

could recall where they were, who they were with, and precisely 

when they arrived and left for something as trifling as attending a 

skate arena.”

The postconviction court acknowledged the general rule that 

“the passage of time alone does not necessarily make a claim 

inherently incredible,” but distinguished cases like Himes v. State, 

310 So. 3d 542 (Fla. 1st DCA 2021), Borders v. State, 309 So. 3d 

314 (Fla. 5th DCA 2020) and Simpson v. State, 100 So. 3d 1258 

(Fla. 4th DCA 2012), stating:

In each of these scenarios, the mere passage of time 

would not have been likely to sully the affiants’ 

recollections given the noteworthiness of their alleged

involvement in, or relation to, the crime. In contrast, Alibi 

Witness Hawkins purports to recall the precise details 

about an otherwise uneventful thirty-year-old trip to a 

skate arena.

Alternatively, the postconviction court reasoned that, even if 

the affidavit is not inherently incredible, the newly discovered 

evidence would not produce an acquittal on retrial because 

Appellant admitted being at the scene of the crime at trial.

We address each basis for summary denial in turn.

Newly Discovered Evidence

As our supreme court has explained, “[a] defendant must meet 

two requirements to obtain a new trial based on newly discovered 

evidence. First, the evidence must not have been known by the 

trial court, the party, or counsel at the time of trial, and it must 
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also appear that neither the defendant nor defense counsel could 

have known of such evidence by the use of diligence.” Davis v.

State, 26 So. 3d 519, 526 (Fla. 2009). “Second, the newly discovered 

evidence must be of a nature that it would probably produce an 

acquittal on retrial or yield a less severe sentence.” Id. 

The due diligence and probability prongs of the newly 

discovered evidence test will often require an evidentiary hearing. 

Id. However, no evidentiary hearing is required when the newly 

discovered evidence “is inherently incredible or obviously 

immaterial to the verdict and sentence.” Id. Similarly, summary 

denial is appropriate where, even with the newly discovered 

evidence, the “record conclusively demonstrates that [the movant]

is not entitled to relief.” Id. at 531.

Inherent Incredibility

The postconviction court summarily denied the motion in this 

case because it found the affidavit inherently incredible. While an 

affidavit produced many years after the alleged crime may be

inherently suspicious, “that suspicion alone does not automatically 

support summary denial.” Borders, 309 So. 3d at 316. 

Here, the postconviction court concluded that the affidavit 

was inherently incredible based on its disbelief that someone could 

recall, more than thirty years later, something as “trifling” as 

seeing Appellant at a skate arena. But the affidavit provides no 

basis to conclusively determine that the night at this skate arena 

was trifling to the affiant. While we have no doubt that this line 

of inquiry is ripe for cross-examination, the passage of time alone

does not make the affidavit inherently incredible, at least where 

the affidavit reveals nothing about how or why the affiant might 

recall the events despite the passage of time. Cf. Placide v. State, 

189 So. 3d 810, 812 (Fla. 4th DCA 2015) (finding affidavit of 

“family friend” offering explanation for more than twenty-year

delay inherently incredible).
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Probability for Acquittal on Retrial

As an alternative basis for summary denial, the 

postconviction court reasoned that the newly discovered evidence 

“would not be likely to produce an acquittal at retrial” because 

Appellant admitted being at the scene of the crime at trial. 

But the court misread the records attached to the order. 

Based on those records, Appellant never admitted to being at the 

scene of the crime. Rather, it appears counsel conceded Appellant’s 

presence at the scene of the crime as a defense strategy because

there was no contrary evidence presented to the jury.* Instead, 

counsel argued that based on the evidence, Appellant was present 

but did not commit the murder. This tactical decision by counsel 

is not at all surprising given the evidence before the jury, and in 

any event, is different than an admission by Appellant. Cf. Taylor

v. State, 260 So. 3d 151, 163 (Fla. 2018) (“We conclude that the . . .

affidavit would not produce an acquittal on retrial because it does 

not present any information disputing or explaining the 

statements made by [the defendant] as to the murder.”). As a 

result, we conclude that counsel’s strategic concession, which was

apparently based on the only evidence offered at trial, does not 

conclusively refute Appellant’s newly discovered evidence claim. 

We therefore remand for further proceedings.

AFFIRMED in part, REVERSED in part, and REMANDED. 

LAMBERT, J., concurs.

BOATWRIGHT, J., concurs with opinion, in which LAMBERT, J.,

concurs. 

* To the extent the postconviction court also concluded, 

without an evidentiary hearing, that the newly discovered 

evidence would not likely produce an acquittal on retrial based on 

the testimony of Appellant’s co-defendants and other “third-party 

witnesses,” the record attachments likewise do not conclusively 

refute the claim. 
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Case No. 5D23-1422

LT. Case No. 1990-CF-08397-A

J. BOATWRIGHT, concurring.

Based on the reasoning in the trial court’s order, I concur with 

the Court’s majority opinion that it would be appropriate to 

remand this cause back to the trial court for further proceedings. 

However, I write separately to discuss the legal and facial 

insufficiencies of Green’s motion, which are apparent on our 

record, but were not addressed by the trial court.

First, the affidavit that is the basis of Green’s newly 

discovered evidence claim is not properly sworn. The oath attached 

to the affidavit is signed by the notary, and not Hawkins, who is 

the affiant. It is the notary who therefore swears to facts under 

penalty of perjury and not Hawkins. Nowhere on the document is 

Hawkins’ signature. A newly discovered evidence claim “must be 

supported by a properly sworn affidavit from the witness whose 

testimony provides the basis for the claim.” See Himes v. State, 310 

So. 3d 542, 544 (Fla. 1st DCA 2021) (citing Fla. R. Crim. P. 

3.850(c)). Thus, Green’s motion was facially insufficient. Id.

Second, while Green included the certification requirements 

of rule 3.850(n), he did not sign the certification under penalties of 

perjury; thus, the motion is not properly sworn. See Fla. R. Crim. 

P. 3.850(c) (“The motion must be under oath stating that the 

defendant has read the motion or that it has been read to her, that 

the defendant understands its content, and that all of the facts 

stated therein are true and correct. The motion must include the 

certifications required by subdivision (n) of this rule . . . .” 

(emphasis added)); see also Spera v. State, 971 So. 2d 754, 762 (Fla. 

2007) (“[R]ule 3.850 . . . require[s] that defendants file [a] 

postconviction motion[] under oath and penalty of perjury that all 

the facts alleged are true.”); State v. Shearer, 628 So. 2d 1102, 1103 

(Fla. 1993) (requiring that the oath under rule 3.850 provide, with 

no qualifying language, that movant makes the required 

certifications “under penalty of perjury”). An unnotarized rule 

3.850 motion must contain the oath prescribed in Florida Rule of 

Criminal Procedure 3.987, which reads: “Under penalties of 

perjury, I declare that I have read the foregoing motion and that 
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the facts stated in it are true.” Shearer, 628 So. 2d at 1103–04 

(amending rule 3.987 to provide the prescribed oath for 

unnotarized rule 3.850 motions). Since Green’s motion was not 

notarized, he was required to sign the certification under penalty 

of perjury, which he did not do.

The proper procedure for addressing a facially insufficient 

motion is to dismiss the motion and allow the defendant an 

opportunity to amend the motion to cure the technical deficiencies. 

See Fla. R. Crim. P. 3.850(n)(2) (providing that a defendant’s 

failure to include a proper oath and English certification “shall be 

grounds for the entry of an order dismissing the motion pursuant 

to subdivision (f)(1), (f)(2), or (f)(3)”). According to rule 3.850(f)(2),

“If the motion is insufficient on its face, and the motion is timely 

filed under this rule, the court shall enter a nonfinal, 

nonappealable order allowing the defendant 60 days to amend the 

motion.” As a result, the trial court should have dismissed the 

motion and allowed the defendant an opportunity to amend the 

motion to cure the technical deficiencies. See Cherry v. State, 286 

So 3d 891, 892 (Fla. 5th DCA 2019) (“The postconviction court’s 

first task should have been to analyze and address the facial 

sufficiency of Cherry’s motion.”). 

Finally, in regard to setting an evidentiary hearing on 

remand, it should be noted that a postconviction movant is not 

entitled to an evidentiary hearing based upon a legally or facially 

insufficient motion. See Atwater v. State, 788 So. 3d 223, 232 (Fla. 

2001) (“[A] defendant is entitled to an evidentiary hearing on a 

postconviction relief motion unless (1) the motion, files, and 

records in the case conclusively show that the prisoner is entitled 

to no relief, or (2) the motion or a particular claim is legally 

insufficient.” (emphasis added)). Regarding the technical 

deficiency in Green’s oath, the Florida Supreme Court has 

routinely underscored the importance of ensuring that a rule 3.850 

motion is properly sworn under penalty of perjury before treating 

it on the merits.1 See Shearer, 628 So. 2d at 1103 (rejecting the use 

* Notably, without the requirement that a rule 3.850 motion 

be sworn under penalty of perjury, petitioners would be able to 

freely allege any facts that would make out a legally sufficient 
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of a qualified oath and stating that by qualifying the oath, a 

“defendant could file a motion for post-conviction relief based upon 

a false allegation of fact without fear of conviction for perjury”). 

The court has explained: “If the allegation proved to be false, the 

defendant would be able to simply respond that his verification of 

the false allegation had been ‘to the best of his knowledge’ and that 

he did not know that the allegation was false,” and it has 

accordingly opined: “We require more than that. The defendant 

must be able to affirmatively say that his allegation is true and 

correct.” Id. (internal citations omitted); see also Spera, 971 So. 2d 

at 762 (citing, inter alia, Stevens v. State, 947 So. 2d 1227, 1228 

(Fla. 2d DCA 2007) (“The purpose of the oath is to prevent false 

factual allegations by subjecting the movant to prosecution for 

perjury if the factual allegations in the motion prove to be false.”)). 

Thus, on remand, prior to setting an evidentiary hearing, the trial 

court should first grant Green an opportunity, pursuant to the 

procedures prescribed by rule 3.850(f)(2) and (n)(2), to amend his 

motion to cure the technical deficiencies in his oath and in the 

accompanying affidavit. 

LAMBERT, J., concurs.

claim to get to an evidentiary hearing without fear of prosecution 

for making false statements of fact.