WALTER
v.
STATE
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David S. Walter appealed a trial court order summarily denying his November 2017 post-conviction motion as successive under Florida Rule of Criminal Procedure 3.850. Walter sought a new trial based on an affidavit from an alleged witness to the crime, but the trial court had previously denied an identical motion containing the same affidavit in June 2017. The appellate court affirmed the dismissal, holding that the trial court had reached the merits in its June 2017 order by finding the affidavit lacked credibility, thereby making the subsequent motion properly characterized as successive.
The court affirmed the dismissal of Walter's November 2017 motion as successive. Although the trial court's June 2017 order initially indicated that it was unnecessary to address the merits, the court's findings that the affidavit lacked credibility and appeared fraudulent constituted a determination on the merits, making the subsequent identical motion properly characterized as successive under Florida law.
[1] A trial court reaches the merits of a post-conviction motion when it evaluates the sufficiency and credibility of evidence presented, even if the order initially states t…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial court may dismiss a successive motion for post-conviction relief that had been previously adjudicated on the merits.”
Court cited McKenley v. State, 937 So. 2d 223, 225 (Fla. 3d DCA 2006) to support the propriety of dismissing successive post-conviction motions.
In February 2017, Walter filed a post-conviction motion for a new trial based on newly discovered evidence in the form of a witness affidavit. The tri…
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PER CURIAM.
Appellant David S. Walter appeals a December 8, 2017 trial court order summarily denying, as successive, Walter’s November 20, 2017 post-conviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. Walter’s motion alleged he was entitled to a new trial based on newly discovered evidence, to wit, an affidavit of an alleged witness to the crime.
In February of 2017, however, Walter filed a virtually identical motion, along with the same affidavit that accompanied Walter’s November 2017 motion.
On June 28, 2017, the trial court denied Walter’s February 2017 motion. In its order, the trial court expressed that it was unnecessary to address the merits of the claim because the affidavit was legally insufficient in that it lacked a jurat. Toward the end of this order, though, the trial court elaborated by further finding the affidavit lacked credibility and appeared to be an attempt to perpetrate a fraud on the court. Walter did not appeal this June 28, 2017 order. In this appeal, Walter contends that the trial court erred in finding his November 2017 motion successive on the ground that the trial court did not reach the merits of his February 2017 motion. We disagree. While the trial court’s June 28, 2017 order initially indicated that it was unnecessary to address the merits, the order plainly and unequivocally determined that the affidavit upon which Walter’s February 2017 motion was based lacked credibility. This constituted a reaching of the merits; and thus, the trial court correctly characterized Walter’s November 2017 motion as successive. McKenley v. State, 937 So. 2d 223, 225 (Fla. 3d DCA 2006) (“A trial court may dismiss a successive motion for post-conviction relief that had been previously adjudicated on the merits.”).
Affirmed.