NEGUS DELHALL

v.

THE STATE OF FLORIDA

Opinion filed July 21, 2021. Not final until disposition of timely filed motion for rehearing.

________________ No. 3D21-335 Lower Tribunal No. F98-14364 ________________

Negus Delhall,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Teresa Mary Pooler, Judge. Negus Delhall, in proper person. Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee. Before EMAS, SCALES and MILLER, JJ. PER CURIAM.

Negus Delhall appeals from an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.1 Delhall’s motion was premised upon claims of newly discovered evidence. We affirm the trial court’s order in all respects.

Generally, a motion seeking postconviction relief under rule 3.850 will not be considered “if filed more than 2 years after the judgment and sentence become final. . . .” Fla. R. Crim. P. 3.850(b). However, when a postconviction claim is premised upon newly discovered evidence, a movant may seek relief beyond the two-year limitation if the motion alleges:

[T]he facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence. Fla. R. Crim. P. 3.850(b)(1).

The trial court made a preliminary determination that Delhall’s motion contained one or more facially sufficient claims of newly discovered evidence, and properly granted an evidentiary hearing to resolve these claims. Harris v. State, 128 So. 3d 44, 46 (Fla. 3d DCA 2012) (noting:

“Absent a record that conclusively refutes the allegations in the affidavit, or a finding that the newly-discovered evidence is inherently incredible, an evidentiary hearing generally will be required to resolve claims of newly-discovered evidence, especially when resolution of those claims necessarily requires the trial court to make credibility determinations”) (citing McLin v. State, 827 So. 2d 948, 955–57 (Fla. 2002); Jones v. State, 591 So. 2d 911, 916 (Fla. 1991)). At the evidentiary hearing, the burden was on Delhall to establish that the newly discovered evidence was of such nature that “it would probably produce an acquittal on retrial.” Jones v. State, 709 So. 2d 512, 526 (Fla. 1998).

Following the evidentiary hearing, the trial court issued a thorough and well-reasoned sixteen-page order in which it considered and analyzed the admissible newly discovered evidence, evaluated the weight of both the newly discovered evidence and the evidence that had been introduced at trial, and determined Delhall failed to establish a reasonable probability that this newly discovered evidence would probably produce an acquittal at a new trial.

We review the trial court’s “findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent substantial evidence.” Marek v. State, 14 So. 3d 985, 990 (Fla. 2009) (citing Green v. State, 975 So. 2d 1090, 1100 (Fla. 2008)). See also Porter v. State, 788 So. 2d 917, 923 (Fla. 2001) (reaffirming: “So long as its decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence by the trial court. We recognize and honor the trial court's superior vantage point in assessing the credibility of witnesses and in making findings of fact.”) (Internal citations omitted). There is competent substantial evidence to support the trial court’s findings and its ultimate conclusion that there is not a reasonable probability of an acquittal on retrial upon this claimed newly discovered evidence.

Affirmed.