                  NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                         MOTION AND, IF FILED, DETERMINED


                                                IN THE DISTRICT COURT OF APPEAL
                                                OF FLORIDA
                                                SECOND DISTRICT



JAMES S. DUNCAN, DOC #165332,       )
                                    )
           Appellant,               )
                                    )
v.                                  )                Case No. 2D16-2625
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed April 21, 2017.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pinellas County; Michael F. Andrews,
Judge.

Lisabeth J. Fryer of Lisabeth J. Fryer, P.A.,
Winter Park; and William R. Ponall, Ponall
Law, Maitland, for Appellant.



WALLACE, Judge.

              James Duncan appeals from the summary denial1 of his motion for

postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Because Mr.



              1
                Although the postconviction court entitled its order as a summary
dismissal of Mr. Duncan's motion for postconviction relief, the postconviction court also
stated that it was summarily denying his claim. Accordingly, we treat Mr. Duncan's
motion as if it were summarily denied below.
Duncan's newly discovered evidence claim was not conclusively refuted by the record

and the postconviction court relied upon evidence outside the record to deny the claim,

we reverse and remand for an evidentiary hearing.

              Mr. Duncan was convicted of thirteen counts of aggravated child abuse on

March 27, 1996, and sentenced to a total of seventy years in prison. This court affirmed

Mr. Duncan's judgment and sentences in 1997. See Duncan v. State, 696 So. 2d 359

(Fla. 2d DCA 1997) (table decision).

              On December 22, 2015, Mr. Duncan filed a motion for postconviction relief

raising a single claim. Mr. Duncan's claim of newly discovered evidence was based on

a scientific article in a peer-reviewed medical journal published in January 2014,

together with an affidavit and a report from the article's co-author prepared on Mr.

Duncan's behalf. Mr. Duncan alleged that these materials not only discredited the

scientific theory relied upon by the State at his trial, but also proved that he did not

abuse the victim. Specifically, Mr. Duncan and the article's author asserted that the

victim's injuries were caused by a metabolic bone disease, not child abuse. They also

asserted that such evidence was unknown at the time of trial, could not have been

discovered by the exercise of due diligence, and would probably produce an acquittal

on retrial.

              After considering the State's response, the postconviction court summarily

dismissed the claim as untimely. The postconviction court ruled that Mr. Duncan's claim

was untimely because he could have "obtained an expert to diagnose metabolic bone

disease more than two years before he filed [his] motion." The postconviction court

further found that the new scientific article merely "criticize[d]" the State's scientific




                                              -2-
theory at trial. Further, in reaching its conclusion, the postconviction court relied upon

other scientific articles that were attached as exhibits to the State's response to

demonstrate that Mr. Duncan could have brought this claim long before Mr. Duncan

discovered the new article. Finally, in the alternative, the postconviction court ruled that

even if Mr. Duncan's claim were timely filed, it would be denied as meritless because

the new scientific article, affidavit, and report could not constitute newly discovered

evidence. This appeal followed.2

              We review the postconviction court's summary denial of a rule 3.850

motion de novo. Balmori v. State, 985 So. 2d 646, 649 (Fla. 2d DCA 2008) (citing

Willacy v. State, 967 So. 2d 131, 138 (Fla. 2007)). "On appeal from a summary denial

of a motion for postconviction relief, this court must reverse 'unless the record shows

conclusively that the appellant is entitled to no relief.' " Perez v. State, 118 So. 3d 298,

300-01 (Fla. 3d DCA 2013) (quoting Fla. R. App. P. 9.141(b)(2)(D)). If the

postconviction court fails to conduct an evidentiary hearing, we "must accept the

defendant's factual allegations as true to the extent they are not refuted by the record."

Id. at 301 (quoting Mason v. State, 976 So. 2d 80, 80 (Fla. 3d DCA 2008)).

              To prevail on a claim of newly discovered evidence, a defendant must

meet two requirements.

              First, the evidence must not have been known by the trial
              court, the party, or counsel at the time of trial, and it must
              appear that the defendant or defense counsel could not have
              known of it by the use of diligence. Second, the newly
              discovered evidence must be of such nature that it would
              probably produce an acquittal on retrial.




              2
                  The State did not file an answer brief.


                                              -3-
Coley v. State, 74 So. 3d 184, 185 (Fla. 2d DCA 2011) (quoting Preston v. State, 970

So. 2d 789, 797 (Fla. 2007)). Additionally, "a claim of newly discovered evidence must

be raised 'within 2 years of the time the new facts were or could have been discovered

with the exercise of due diligence.' " Russell v. State, 100 So. 3d 202, 203 (Fla. 2d DCA

2012) (quoting Fla. R. Crim. P. 3.850(b)(1)).

              Here, there is nothing in the record to conclusively show that Mr. Duncan's

facially sufficient motion was untimely filed. Mr. Duncan filed his motion within two

years of the publication of the new scientific article. He alleged that this article

contained "newly developed science" that not only disproves the State's theory at trial,

but also demonstrates that the true cause of the victim's injuries was a rare bone

disease, not child abuse. He further asserted that he could not have discovered this

"newly developed science" with the exercise of due diligence because it was not

published until January 2014. Accordingly, although the postconviction court found that

Mr. Duncan could have obtained an expert to diagnose the possibility of a bone disease

and that some in the scientific community acknowledged the possibility that a certain

condition could indicate a metabolic bone disease instead of child abuse years before,

such findings do not conclusively refute Mr. Duncan's claim. Nor do they decisively

establish that Mr. Duncan and his counsel, with due diligence, could have discovered

the new article and its "newly developed science" earlier than its publication date.

Indeed, there is no conclusive record evidence to demonstrate that this "newly

developed science," which allegedly discredits the scientific theory employed by the

State at trial, had been fully developed or known before the publication of the article in




                                             -4-
January 2014. Therefore, we disagree with the postconviction court's conclusion that it

was not required to hold an evidentiary hearing on Mr. Duncan's claim.

              Our conclusion that an evidentiary hearing is required is bolstered by the

postconviction court's reliance upon other scientific articles attached to the State's

response to deny Mr. Duncan's claim. Such reliance was error because the exhibits

were neither a part of the original record nor properly admitted at an evidentiary hearing.

See Forte v. State, 189 So. 3d 1043, 1044 (Fla. 2d DCA 2016) (holding that the

postconviction court erred in relying upon the transcript from a co-defendant's

evidentiary hearing, which was attached to the State's response, to summarily deny the

defendant's rule 3.850 motion because it was outside the scope of the record). Finally,

we disagree with the postconviction court's conclusion that scientific evidence in the

form of articles and studies cannot constitute newly discovered evidence. See Clark v.

State, 995 So. 2d 1112, 1113 (Fla. 2d DCA 2008) (holding that scientific evidence in the

form of medical studies, reports, and articles could be considered newly discovered

evidence), cited with approval in Smith v. State, 23 So. 3d 1277, 1278 (Fla. 2d DCA

2010); see also Zamarippa v. State, 100 So. 3d 746, 747 (Fla. 2d DCA 2012) (reversing

and remanding for an evidentiary hearing because a scientific organization's report on

comparative bullet-lead analysis could constitute newly discovered evidence); Murphy v.

State, 24 So. 3d 1220, 1222 (Fla. 2d DCA 2009) (same); cf. Henry v. State, 125 So. 3d

745, 750-51 (Fla. 2013) (leaving open the possibility that scientific articles based on

new data and scientific information as opposed to a compilation of "previously existing"

data may constitute newly discovered evidence).




                                            -5-
             For the foregoing reasons, we reverse the postconviction court's summary

denial of Mr. Duncan's motion. We express no opinion on the merits of Mr. Duncan's

claim of newly discovered evidence. On remand, the postconviction court shall conduct

an evidentiary hearing on that claim.

             Reversed and remanded.



SILBERMAN and BADALAMENTI, JJ., Concur.




                                        -6-
