          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D16-2188
                 _____________________________

LIDALE R. KELLUM,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Bay County.
Hentz McClellan, Judge.

                           May 18, 2018


PER CURIAM.

     Lidale R. Kellum appeals the trial court’s denial of his motion
seeking postconviction relief based on newly discovered evidence.
Because the evidence on which Kellum relied was discoverable at
the time of his violation of probation hearing, the trial court
properly denied the motion. See Rutherford v. State, 926 So. 2d
1100, 1107 (Fla. 2006) (holding that newly discovered evidence
must be based on facts that were unknown to the trial court,
appellant, and his counsel at the time of trial and that neither the
appellant nor his counsel could have discovered the facts through
the exercise of due diligence).

    AFFIRMED.
B.L. THOMAS, C.J., and ROWE and WINSOR, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Henry Sims, Public Defender, Panama City, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




                               2
