GUIDO CARILLO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Guido Carillo appeals the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, claiming the State withheld Brady material—specifically a polygraph examination administered to the sole witness against him. The court affirms the denial, finding that defense counsel was aware of the polygraph test at trial and failed to timely object, and that any Brady violation was harmless.
The summary denial was proper because: (1) defense counsel was apprised of the polygraph examination during cross-examination at trial and made no further inquiry, making it not newly discovered evidence; (2) Carillo failed to make a timely objection to any discovery violation, placing the burden on him to raise such issues; and (3) Salon's remark regarding being at the scene is immaterial to whether Carillo conspired to commit murder months earlier.
[1] Newly discovered evidence will not support a collateral attack on a judgment of conviction if the matter was known to the defendant at the time of trial.
[2] A new trial will not be granted based on newly discovered evidence unless such evidence was discovered after the former trial.
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Establishes the standard for newly discovered evidence in post-conviction motions
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Join FLexlaw to unlock all legal intelligenceCarillo was indicted for conspiracy to commit murder. The State responded to a Brady discovery demand claiming it was unaware of any Brady material. A…
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PER CURIAM.
Defendant, Guido Carillo, appeals the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850.
Carillo was indicted for conspiracy to commit murder. He filed various discovery motions including a demand for “Brady" material specifically requesting any written or recorded statements, police investigative reports or any other information or material which would tend to establish his innocence or to impeach or contradict testimony of any witness whom the State would call at the trial. The prosecution filed a response which alleged that the State was unaware of any Brady material. The cause proceeded to trial at which William Salon was the sole witness to offer any evidence against Carillo concerning his participation in the conspiracy. Carillo was found guilty and sentenced to eight years imprisonment. Subsequently, Carillo filed the instant motion to vacate judgment and sentence on the ground of newly discovered evidence. He alleged that subsequent to the trial (and appeal), he had learned that the State had withheld “Brady” evidence. Specifically, he discovered for the first time that the State had administered to Salon a polygraph examination which he allegedly failed according to the examiner’s potes and report. The motion to vacate was denied without an evidentiary hearing by the same judge who presided over the trial. This appeal from the summary denial ensued. We affirm.
With regard to the ground of newly discovered evidence, a new trial will not be granted unless such evidence is discovered after the former trial. See Thomas v. State, 374 So. 2d 508, 515 (Fla.1979). Similarly, if the matter forming the basis of a motion to vacate was known to the defendant at the time of trial, it will not support a collateral attack on the judgment of conviction. State-v. Matera, 266 So. 2d 661, 666 (Fla.1972). An examination of the record reflects that defense counsel for Carillo was apprised of the polygraph test administered to Salon during cross-examination of Detective Alonso at the trial. Nevertheless, defense counsel made no further inquiry during the trial regarding this matter. As concerns the argument that the State failed to comply with defense counsel’s demand for discovery pursuant to Fla. R.Crim.P. 3.220, the law is well established that since noncompliance with Rule 3.220 does not require automatic reversal, the burden is upon the defendant to raise a timely objection and thereby allow the trial court to make inquiry into all of the surrounding circumstances and then specifically rule on the issue. Lucas v. State, 376 So. 2d 1149 (Fla.1979). Again, the record fails to demonstrate any objection or demand for inquiry on the part of defense counsel upon learning of the polygraph examination.
Finally, we believe that the alleged materiality of Salon’s remark that he was at the scene of the homicide is totally irrelevant with respect to Carillo’s having conspired to kill the victim several months earlier and, therefore, not “Brady" material.
For the reasons stated, the summary denial of the motion to vacate is affirmed.
Affirmed.
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Simon v. State, 615 So. 2d 236 (Fla. 3d DCA 1993)…motion for mistrial, made no claim that he had never seen the property receipt or that there had been a discovery violation as to him. Lucas v. State, 376 So. 2d 1149 (Fla.1979); Taylor v. State, 589 So. 2d 918 (Fla. 4th DCA 1991); Carillo v. State, 382 So. 2d 429 (Fla. 3d DCA 1980). Second, the defendant complains about three improper comments made by the prosecuting attorney in final argument to the jury, (a) One of these comments was not objected to at trial by the defendant (TR. 764-65) and, accordingly,…
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Ross v. State, 392 So. 2d 23 (Fla. 4th DCA 1980)…lure to render reasonably effective assistance of counsel has been made, such ineffective assistance was known to defendant at time of trial, knowingly and voluntarily concurred in by him, and cannot support this collateral attack. Carillo v. State, 382 So. 2d 429 (3 DCA 1980) and Burau v. State, 353 So. 2d 1183 (3 DCA 1978). Defendant could have raised his complaints before and during trial, thereby preserving his complaint for his direct appeal. Martin v. State, supra. Even though his complaint of ineffecti…
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State v. Matera, 401 So. 2d 1361 (Fla. 3d DCA 1981)…Lamons had picked Matera out of a line-up that itself was never attacked as suggestive) precludes Matera from having such an issue, available to have been litigated at trial, considered on a Rule 3.850 motion thirteen years later. Carillo v. State, 382 So. 2d 429 (Fla. 3d DCA 1980); State v. Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978); Hughes v. State, 354 So. 2d 130 (Fla. 3d DCA 1978); Clements v. State, 320 So. 2d 44 (Fla. 3d DCA 1975). Moreover, as the earlier factual recitation of the crime reveals, even i…
Authorities Cited
- Lucas v. State, 376 So. 2d 1149 (Fla. 1979)
- State v. Matera, 266 So. 2d 661 (Fla. 1972)
- Thomas v. State, 374 So. 2d 508 (Fla. 1979)