MARK ANTHONY JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of postconviction relief where the affidavit of a codefendant was too conclusory to warrant an evidentiary hearing, and other claims were either procedurally improper or moot.
An affidavit in support of a Rule 3.850 motion that merely states testimony was 'colored and inaccurate' without specifying what the testimony was or explaining the inaccuracies is too conclusory to require an evidentiary hearing.
[1] An affidavit supporting a Rule 3.850 postconviction relief motion must contain particularized facts regarding alleged inaccuracies in trial testimony, not merely concluso…
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Join FLexlaw to unlock all legal intelligenceMark Johnson appealed the denial of his postconviction relief motion under Florida Rule of Criminal Procedure 3.850, which was accompanied by an affid…
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PER CURIAM.
Mark Johnson appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.
Appellant’s 3.850 motion was accompanied by the affidavit of a codefendant who entered a plea and testified at trial. The affidavit states that the affiant’s trial testimony “was colored and was inaccurate.” The affidavit does not state what the affiant’s testimony was, nor does the affidavit explain what were the inaccuracies. The affidavit is much too conclusory to call for an evidentiary hearing. See Williamson v. Dugger, 651 So. 2d 84, 89 (Fla.1994) (affidavits insufficient to require an evidentiary hearing); Johnson v. Singletary, 647 So. 2d 106, 110 (1994) (“The crucial question is whether the contents of the affidavits are of such a nature that they would probably produce an acquittal on retrial.”); Jones v. State, 591 So. 2d 911, 915-16 (Fla.1991) (In order to provide relief, newly discovered evidence must be such that it would have probably resulted in an acquittal had it been introduced at trial). Our affir-mance on this point is without prejudice to appellant to refile the motion and offer a particularized affidavit.
Appellant’s claim of error in the jury instructions is an issue which is cognizable by direct appeal, not by motion for postconviction relief. As to appellant’s final point, during the pendency of this appeal the trial court complied with this court’s mandate in Johnson v. Singletary, 625 So. 2d 1251 (Fla. 3d DCA 1993). That issue is now moot.
Affirmed.
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Citator
Cited By
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Brant v. State, 817 So. 2d 1039 (Fla. 3d DCA 2002)…grounds 4 and 5. Denial of defense motions for acquittal, on the charges of possession with intent to sell and for aggravated assault on law enforcement, are not cognizable under Florida Rule of Criminal Procedure 3.850. See, e.g. Johnson v. State, 649 So. 2d 948 (Fla. 3d DCA 1995)(issue which can be brought on direct appeal not cognizable by motion for post conviction relief).…
Authorities Cited
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- Williamson v. Dugger, 651 So. 2d 84 (Fla. 1994)
- Johnson v. Singletary, 647 So. 2d 106 (Fla. 1994)
- Johnson v. Singletary, 625 So. 2d 1251 (Fla. 3d DCA 1993)