FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-251

LT Case No. 00-12377 CFA

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T’SHUMBIE COLLINS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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3.850 appeal from the Circuit Court for Duval 

County. Mark Borello, Judge. 

T’Shumbie A. Collins, Bowling Green, pro se. 

No Appearance for Appellee. 

September 1, 2023

PER CURIAM.

Appellant, T’Shumbie Collins, appeals the summary denial 

of his successive motion for postconviction relief filed pursuant to 

Florida Rule of Criminal Procedure 3.850, which alleged newly 

discovered evidence. With his motion, Appellant provided an 

affidavit from a co-defendant who testified against him at trial. 

In the affidavit, the co-defendant recanted his testimony. The 

trial court summarily denied Appellant’s motion because “the 
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recantation testimony is not of such a nature that it would 

probably render a different outcome on retrial.” We affirm 

because the trial court correctly denied Appellant’s motion but 

write to address Appellant’s common, but misplaced, argument 

that he is entitled to an evidentiary hearing pursuant to the 

Florida Supreme Court’s decision in Nordelo v. State, 93 So. 3d 

178, 185 (Fla. 2012).

Application of Davis and Nordelo

In situations involving alleged newly discovered evidence in 

the form of a recantation, it is generally recognized that an 

evidentiary hearing is required “to evaluate the veracity of the 

recanting witness.” Barros v. State, 254 So. 3d 1186, 1187 (Fla. 

5th DCA 2018). Two frequently cited decisions that discuss the 

requirements to obtain an evidentiary hearing are Davis1 and 

Nordelo. Under the standard articulated in these cases, the trial 

court should hold an evidentiary hearing “unless the affidavit is

inherently incredible or obviously immaterial to the verdict and 

sentence.” See Nordelo, 93 So. 3d at 185 (quoting Davis, 26 So. 

3d at 526).

In Davis, the supreme court analyzed the trial court’s 

summary denial of a defendant’s postconviction motion alleging 

newly discovered evidence. 26 So. 3d at 528. Discussing the 

probability prong of Jones II,

2 the court found that the trial court 

erred when it did not hold an evidentiary hearing based on the 

newly discovered evidence that the defendant never said he 

would “do away with” the victim. Id. at 529. In so doing, the 

court explained “[t]his statement was a significant piece of 

evidence directed to prove Davis’s premeditation during the guilt 

phase and to support the imposition of an aggravating 

circumstance in the penalty phase.” Id. at 529.

Despite this error, the court found an alternative basis for 

proper summary denial because “the recantation would not 

1 See Davis v. State, 26 So. 3d 519 (Fla. 2009). 

2 See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998).
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eliminate the other evidence supporting premeditation to commit 

the murder and the proportionality of the death sentence.” Id. at 

529. Specifically, the supreme court observed that “Davis’s

confession that he stabbed the victim with two different knives,

coupled with the testimony of the medical examiner that the

victim sustained stab wounds to the back, chest, and neck,

support[ed] a finding of premeditated first-degree murder.” Id. at

530. Accordingly, after considering this other evidence which

supported premeditation and the aggravating circumstance

during the penalty phase, the supreme court affirmed the

summary denial “because the record conclusively demonstrate[d]

that [the defendant was] not entitled to relief.” Id. at 531.

Nordelo, decided three years after Davis, also dealt with a 

summarily denied postconviction motion alleging newly 

discovered evidence. 93 So. 3d at 180–81. However, the trial 

court in Nordelo did not attach anything from the record to its 

order. Id. at 181. As the supreme court noted, “for an appellate 

court ‘[t]o uphold the trial court’s summary denial of claims 

raised in a 3.850 motion, the claims must be either facially 

invalid or conclusively refuted by the record.” Id. at 182 

(alteration in original) (quoting Peede v. State, 748 So. 2d 253, 

257 (Fla. 1999)). In affirming the trial court’s summary denial, 

the Third District Court improperly made factual determinations 

regarding whether the claim was conclusively refuted without 

examining the record and “concluded that the motion was ‘legally 

insufficient.’” Id. at 181, 186–87. Consequently, both lower 

courts “muddied the distinction between evaluation of the facial 

sufficiency of the motion and the subsequent task of determining 

if a facially sufficient motion is conclusively refuted by the 

record.” Id. at 185. The lower courts’ failure to review and 

attach the record required reversal and an evidentiary hearing. 

Id. at 187–88.

In this case, Appellant insists Nordelo requires an 

evidentiary hearing to weigh the newly discovered evidence 

against the evidence presented at trial. However, in light of the 

holding in Davis, we read Nordelo much more narrowly.3 We 

3 We acknowledge that Appellant’s reading of Nordelo finds 

some support in the language of the opinion. Perhaps most 
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interpret Davis as authorizing trial courts to weigh newly 

discovered evidence against the evidence presented at trial 

without an evidentiary hearing to the extent that the evidence at 

trial conclusively refutes the claim and, as acknowledged in 

Nordelo, the pertinent portions of the record are attached to the 

order. Given that the newly discovered evidence in Davis at least 

arguably weakened the State’s case, it appears that the supreme 

court weighed the newly discovered evidence against the other 

importantly, Nordelo remanded “for an evidentiary hearing” 

without an opportunity to attach portions of the record which 

conclusively refuted the claim. Nordelo, 93 So. 3d at 188. 

Although the supreme court reasoned that the unknown contents 

of a pretrial conversation with the co-defendant could not 

conclusively refute the claim, the court did not explain why it 

would be impossible for other portions of the record to 

conclusively refute the claim.

Similarly, even though Nordelo seems to be based on the

trial court’s failure to attach records, the opinion also conducts a 

thorough review of the entire process, including discussion 

regarding a court’s evaluation of whether a motion is legally 

sufficient, a court’s determination of whether the motion is 

refuted by the record, and the proper analysis after an 

evidentiary hearing is granted. However, much of this discussion 

is dicta. 

Finally, both Davis and Nordelo state that “[t]he 

determination of whether the statements are true and meet the 

due diligence and probability prongs of Jones II usually requires 

an evidentiary hearing to evaluate credibility unless the affidavit 

is inherently incredible or obviously immaterial to the verdict 

and sentence.” Davis, 26 So. 3d at 526; Nordelo, 93 So. 3d at 185. 

We need not determine exactly how often a newly discovered 

evidence claim will ultimately require an evidentiary hearing, 

but we cannot read this statement as broadly as Appellant.
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evidence at trial and determined that the remaining evidence 

was strong enough to conclusively refute the claim.

In our view, Nordelo reversed the trial court’s summary 

denial because the order failed to include record attachments 

conclusively refuting the newly discovered evidence claim. This 

interpretation finds direct support in the plain language of rule 

3.850. When a legally sufficient motion is denied without a 

hearing “a copy of that portion of the files and records that 

conclusively shows that the defendant is entitled to no relief shall 

be attached to the final order.” Fla. R. Crim. P. 3.850(f)(5) 

(emphasis added).4 As such, there was nothing for the lower

courts in Nordelo to weigh against the newly discovered evidence.

Thus, summary denial is appropriate where a legally 

sufficient motion is conclusively refuted by the record, provided 

that the court reviews the record and attaches relevant portions 

of the record to its order. See Fla. R. Crim. P. 3.850(f)(5); see also 

Hamilton v. State, 875 So. 2d 586, 591 (Fla. 2004) (“[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.” 

(alteration in original) (quoting Freeman v. State, 761 So. 2d 

1055, 1061 (Fla. 2000))).

Conclusion

Because the trial court accepted the allegations in 

Appellant’s motion and affidavit as true to the extent they were 

not refuted in the record, and attached multiple exhibits to its 

order, including trial transcripts that conclusively refute the 

claim made in the affidavit provided with the motion, summary 

denial was appropriate.

AFFIRMED.

4 Subdivision (f) existed as subdivision (d) prior to its 

redesignation in 2013. See In re Amends to Fla. R. Crim. P. & 

Fla. R. App. P., 132 So. 3d 734, 738 (Fla. 2013).
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EDWARDS, C.J., EISNAUGLE, and KILBANE, JJ., concur.

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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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