         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


ORBARY MCKINNON,

             Appellant,

 v.                                                     Case No. 5D16-3167

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed June 9, 2017

3.850 Appeal from the Circuit
Court for Citrus County,
Richard A. Howard, Judge.

Deana K. Marshall, of Law Office of Deana
K. Marshall, P.A., Riverview, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Douglas T. Squire,
Assistant Attorney General, Daytona
Beach, for Appellee.

PER CURIAM.

      Orbary McKinnon (the defendant) appeals the trial court’s order summarily denying

his “Motion for Post-Conviction Relief, Newly Discovered Evidence," filed pursuant to rule

3.850 of the Florida Rules of Criminal Procedure. We reverse and remand for the trial

court to conduct an evidentiary hearing.
       The defendant filed the instant rule 3.850 motion seeking post-conviction relief

based on newly-discovered evidence. In support of his motion, the defendant attached

an affidavit from his co-defendant, Norman Lockley, stating that the defendant had not

participated in the underlying drug offenses. The trial court summarily denied the motion,

concluding that Lockley's recantation was not credible and would not have produced an

acquittal on retrial. This appeal followed.

       The defendant contends that the trial court erred in denying his motion without

conducting a hearing first. We agree.

       The decision to grant or deny an evidentiary hearing on a rule 3.850 motion is

subject to de novo review. Nordelo v. State, 93 So. 3d 178, 184 (Fla. 2012). To uphold

the summary denial of a rule 3.850 motion, the claims made must either be facially invalid

as a matter of law or be conclusively refuted by the record. McLin v. State, 827 So. 2d

948, 954 (Fla. 2002). In undertaking this review, the factual allegations of the motion must

be accepted as true unless refuted by the record. Nordelo, 93 So. 3d at 184; McLin, 827

So. 2d at 956.

       To obtain post-conviction relief based on a newly-discovered evidence claim, the

newly-discovered evidence must be of such nature that it would probably produce an

acquittal on retrial. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). In this regard,

newly-discovered evidence constitutes a basis for post-conviction relief if it “weakens the

case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.”

Id. at 526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla. 1996)). Newly discovered

recantation evidence does not

              necessarily entitle a defendant to a new trial. Florida law treats
              recantations with suspicion, and requires a new trial only if the



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              court is satisfied that the recantation is true and that “the
              witness's testimony will change to such an extent as to render
              probable a different verdict.” Armstrong v. State, 642 So. 2d
              730, 735 (Fla. 1994).
              An evidentiary hearing is usually required to make that
              determination.

Robinson v. State, 736 So. 2d 93, 93 (Fla. 4th DCA 1999).

       The trial court erred by summarily denying the defendant's motion based on the

conclusion that Lockley's recantation was not credible. Accordingly, we reverse and

remand for the trial court to conduct an evidentiary hearing. See Nordelo, 93 So. 3d at

185–86 (holding that an evidentiary hearing is usually required to resolve legal questions

on newly discovered evidence claims due to credibility determinations necessary in

analysis); McLin, 827 So. 2d at 956 (holding that an evidentiary hearing is generally

required to determine whether newly discovered evidence is “of such nature that it would

probably produce an acquittal on retrial”).

       REVERSED and REMANDED.


COHEN, C.J., PALMER, and TORPY, JJ., concur.




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