## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

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Case No. 5 D 2 3

- 251 LT Case No. 00

- 12377 CFA

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T’ SHUMBIE C OLLINS , Appellant,

v.

S TATE OF F LORIDA , Appellee.

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3.850 appeal from the Circuit Court for Duval County. Mark Bor e llo, Judge.

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

. No Appearance for Appellee.

September 1 , 2023

P ER C URIAM

. Appellant, T’Shumbie Collins, appeals the summary denial of his successive moti on 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

- defenda nt who testified against him at trial. In the affidavit, t he co

- defendant recanted his testimony. The trial court summarily denied Appellant’s motion because “the2

recantation testimony is not of such a nature that it would probably render a different out come on retrial.” We affirm because the trial court correc tly 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 Nord elo v. State , 93 So. 3d 178, 185 (Fla. 2012).

Application of D avis 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 11 86, 1187 (Fla. 5t h DCA 2018). Two frequently cited decisions that discuss the requirements to obtain an evidentiary hearing are Davis 1 and Nordelo . Under the standard articulated in these cases, the trial court should hold an evidentiary hearing “un less 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 o f a defendant ’ s post conviction 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 discovere d 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)

.3

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

con fession that he stabbed the victim with two different knives, coupled with the testimony of the medical examiner th at the victim sustai ned stab wounds to the back, chest, and neck, support[ed] a finding of premeditated first

- degree murder.” Id . at 530. A ccordingly, after considering this other evidence which supported premeditation and the aggravating circumstance du ring the penalty pha se, 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 deni ed postconviction mo tion alleging newly discovered evidence. 93 So. 3d at 180

– 81. However, the trial court in Nordelo did not attach anythi ng 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 summa ry denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the r ecord.” Id . at 182 (alteration in original) (quoting Peede v. State , 748 So. 2d 253, 257 (Fla. 1999)). In affirmi ng the trial court’s summary denial, the Third District Court improperly made factual determinations regarding whether the claim was conclusi vely refuted without examining the record and “concluded that the motion was ‘legally insufficient.’” Id . at 181, 186

– 87. Consequentl y, both lower courts “muddied the distinction between evaluation of the facial sufficiency of the motion and the subseque nt task of determining if a facially sufficient motion is conclusively refuted by the record.” Id . at 185. The lo wer courts’ failure to review and attach the record required reversal and an evidentiary hearing. Id . at 187

– 88.

In this case, Appellant in sists 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 mo s t4

interpret Davis as authorizing trial courts to weigh newly discovered evidence against the evidence presented at trial without an evidentiary hearing to the ext ent that the evidenc e at trial conclusively refutes the claim and, as acknowledge d in Nordelo , the pertinent portions of the record are atta ched to the order. Given that the newly discovered evidence in Davis at least arguably weakened the State’s case, i t appears that the s upreme court weighed the newly discovered evidence against the other

importantly, No r de lo 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 pret r ial conversation w it h 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 th e trial court’s fa i lu re 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

re f uted by the recor d

, 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 dilige n ce and probabilit y p rongs 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; Nor delo , 93 So. 3d at 185. We need not deter m in e exactly how often a newly discovered evidence claim will ultimately require an evidentiary hearing, but we cannot read this statement as broadly as Appellant.5

evidence at trial and determined that the remaining evidence was strong enough to conclusively refute the claim.

I n our view, Nordelo reversed the trial court’s summ ary denial because t he order failed to include record attachments conclusively refuting the newly discovered evidence claim. This interpret ation 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 atta ched 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 t o weigh against the newly discovered evidence.

Thus, summary denial is appropriate where a legally sufficient motion i s conclusively refuted by the record, provided that the court reviews the record and attaches relevant portions of th e record to its orde r. 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 s ho w that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insuffi cient.” (alteration in original) (quoting Freeman v. State , 761 So. 2d 1055, 1061 (Fla. 2000))).

Conclusion

Because the trial cou rt accepted the all eg ations 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 pro vided with the moti on , summary denial was appropriate.

AFFIRMED.

4 Sub divi sion (f) existed as sub division (d) pri or to its redesignation i n 2013. See In r e Amen ds to Fla. R. Crim. P. & Fla. R. App. P. , 132 So. 3d 734, 738 (Fla. 2013).6

E DWARDS , C.J., E ISNAUGLE

, and K ILBANE , JJ., concur.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

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