TONDRICK HOUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A recantation by a codefendant is insufficient to meet the Jones standard for postconviction relief when the defendant was also identified by the victim and another codefendant.
[1] A motion for postconviction relief based on newly discovered evidence requires that the evidence be of such a nature that it would probably produce an acquittal on retria…
[2] A defendant is not automatically entitled to an evidentiary hearing upon filing an affidavit stating that someone else committed the crime for which he has been convicted…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of robbery with a firearm based on victim and codefendant testimony. One codefendant later recanted his testimony in an un…
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HARRIS, Judge.
Tondrick Hough was convicted in 1983 of robbery with a firearm and sentenced to fifty years incarceration. His appeal was denied as well as a subsequent Rule 3.800(a) motion. He now brings this Rule 3.850 motion seeking relief based on newly discovered evidence because one of his codefendants who testified against him has recanted his testimony. The trial court denied relief. We affirm.
The facts of this case establish that in 1982, three males entered the Eastern Oil Company in Palatka, Florida. Ms. Erhardt, an employee of Eastern, identified Hough as being one of the men who robbed her. James Mauesby, the recanting witness, admitted to the robbery and identified Hough as an accomplice. Daniel Woods, the third man present during the robbery, also admitted complicity and also testified that Hough was a participant.
Now Mauesby, in an unnotarized “affidavit”, claims that only he and Woods committed the robbery and that they agreed to implicate Hough in order to avoid being tried as adults and sent to prison. Is this recantation, under the facts of this case, sufficient to meet the Jones standard?1 Included within that standard is the requirement that the evidence must be of such nature that it would probably produce an acquittal on retrial. See also State v. Gunshy, 670 So. 2d 920 (Fla.1996).
In Johnson v. Singletary, 647 So. 2d 106 (Fla.1994), the court held that a defendant is not automatically entitled to an evidentiary hearing upon filing an affidavit stating that someone else committed the crime for which he has been convicted. Such a determination must be made on a case-by-case basis. Here, not only was Hough identified as a perpetrator by the recanting codefendant, but also by the victim of the crime as well as another, unreeanting eodefendant. Hough’s motion is insufficient to meet the Jones standard and the trial court was right in denying the motion.
AFFIRMED.
W. SHARP and GRIFFIN, JJ., concur. . Jones v. State, 591 So. 2d 911, 915-916 (Fla. 1991).
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Citator
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Kendrick v. State, 708 So. 2d 1011 (Fla. 4th DCA 1998)…e). A defendant is not automatically entitled to an evidentiary hearing on filing a motion asserting newly discovered evidence. See Johnson v. Singletary, 647 So. 2d 106 (Fla.1994) (determination must be made on ease-by-ease basis); Hough v. State, 679 So. 2d 1300 (Fla. 5th DCA 1996) (hearing was unnecessary on affidavit stating someone else committed the crime, where appellant had been identified as peipetrator by victim as well as by other codefendant). However, where there is conflicting evidence of the de…
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Poff v. State, 41 So. 3d 1062 (Fla. 3d DCA 2010)…im and that the evidence properly qualified as newly discover [*1065] ed evidence, the evidence was not of such a nature that it would probably produce an acquittal on retrial, where other witnesses testified as to the same matters); Hough v. State, 679 So. 2d 1300 (Fla. 5th DCA 1996) (holding that a hearing was unnecessary on an affidavit stating that someone else committed the crime, where appellant had been identified as perpetrator by victim as well as by other codefendant); Stone v. State, 616 So. 2d 1041…
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Garrick John v. State, 98 So. 3d 1257 (Fla. 3d DCA 2012)…onviction relief must be evaluated on a case-by-case basis, and an evidentiary hearing is not required in every case. See e.g., Poff v. State, 41 So. 3d 1062 (Fla. Bd DCA 2010); Williams v. State, 876 So. 2d 1234 (Fla. 4th DCA 2004); Hough v. State, 679 So. 2d 1300 (Fla. 5th DCA 1996). This case presents just such a circumstance. Given the overwhelming nature of the evidence against Garrick John; the history of Gabriel John’s involvement in this case; the circumstances surrounding Gabriel John’s affidavit, pro…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- Johnson v. Singletary, 647 So. 2d 106 (Fla. 1994)
- State v. Gunsby, 670 So. 2d 920 (Fla. 1996)