Third District Court of Appeal

State of Florida 

Opinion filed June 26, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1753

Lower Tribunal No. F08-17481A

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Keith Williams,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jose L. 

Fernandez, Judge.

Eugene F. Zenobi, Regional Counsel, and Jacqueline Rae Brandt, 

Assistant Regional Counsel, for appellant.

Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney 

General, for appellee.

Before EMAS, SCALES and LOBREE, JJ. 

SCALES, J.
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Appellant Keith Williams challenges a September 2, 2022 trial court 

order that, following an August 12, 2022 evidentiary hearing, denied 

Williams’s October 5, 2017 postconviction motion filed pursuant to Florida 

Rule of Criminal of Procedure 3.850. In this appeal, Williams challenges only 

the trial court’s denial of his counsel’s ore tenus motion to continue the 

August 12th hearing so that Williams could procure the attendance of a key 

witness at a future hearing. Concluding that the trial court did not abuse its 

discretion1in denying the continuance, we affirm.

In lower tribunal case number F08-17481A, Williams entered into a 

negotiated plea wherein Williams pled guilty to two counts of attempted 

murder and one count of discharging a firearm from a vehicle. Williams’s rule 

3.850 motion seeks to withdraw Williams’s plea, and thereby vacate his 

judgment and sentences for these crimes, based on alleged newly 

discovered evidence that Williams’s co-defendant, Anthony Cox, has now

disavowed Williams’s involvement in the crimes. In Williams v. State, 255 

So. 3d 464 (Fla. 3d DCA 2018), this Court reversed the trial court’s 

December 1, 2017 order that summarily denied Williams’s rule 3.850 motion 

1 See State v. Humphreys, 867 So. 2d 596, 598 (Fla. 2d DCA 2004) (“We 

review under the abuse of discretion standard the trial court’s refusal to 

continue the evidentiary hearing.”).
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and remanded for an evidentiary hearing at which Cox would ostensibly 

testify.

Although the trial court set Williams’s rule 3.850 motion for an 

evidentiary hearing on multiple occasions, each time Cox did not appear 

despite his apparent knowledge of the hearing. Importantly, Cox was not 

personally subpoenaed to appear at an evidentiary hearing. See § 

914.001(1), Fla. Stat. (2022) (“Subpoenas for witnesses in criminal cases 

shall run throughout the state and be directed to all of the sheriffs of the 

state.”); Fla. R. Crim. P. 3.361(a) (“Subpoenas for testimony before the court 

. . . may be issued by the clerk of the court or by any attorney of record in an 

action.”).

At the August 12, 2022 evidentiary hearing on Williams’s rule 3.850 

motion, upon informing the trial court that Cox had again failed to appear and 

was in the state of Texas, Williams’s counsel made an ore tenus motion to 

continue the hearing once more so that Cox could be personally served with 

a subpoena to appear. The trial court, noting both Cox’s apparent 

unwillingness to appear at an evidentiary hearing and the court’s inability to 

issue a rule to show cause against Cox given the lack of a properly served 

subpoena, denied the continuance. On September 2, 2022, the trial court 

entered an order denying Williams’s rule 3.850 motion. Williams timely 
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appealed this order, challenging only the trial court’s denial of his motion for 

a continuance.

In order to obtain a continuance based on the non-appearance of a 

witness at an evidentiary hearing, the movant must establish: “(1) prior due 

diligence to obtain the witness’s presence; (2) that substantially favorable 

testimony would have been forthcoming; (3) that the witness was available 

and willing to testify; and (4) that the denial of the continuance caused 

material prejudice.” Geralds v. State, 674 So. 2d 96, 99 (Fla. 1996). On this 

record, we conclude that the trial court did not abuse its discretion in denying 

a continuance because Williams failed to satisfy the first and third prongs of 

Geralds. We, therefore, affirm the challenged order.

Affirmed.