       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           ROGER DAWSON,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D14-2416

                             [June 8, 2016]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, Indian River County; Robert L. Pegg,
Judge; L.T. Case No. 312004-68-CF.

  Benjamin S. Waxman of Robbins, Tunkey, Ross, Amsel, Raben &
Waxman, P.A., Miami, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for
appellee.

                       ON MOTION FOR REHEARING

PER CURIAM.

   Roger Dawson appeals an order denying his rule 3.850 motion after
an evidentiary hearing. This court affirmed per curiam. Dawson v.
State, No. 4D14-2416 (Fla. 4th DCA Mar. 10, 2016). Dawson has moved
for rehearing or to write an opinion. We grant his motion in part, by
writing this opinion to explain the basis for our affirmance. As discussed
below, we conclude the post-conviction court did not err in denying
Dawson’s motion claiming newly discovered evidence.

   Dawson was charged with sale or delivery of cocaine within 1000 feet
of a church (count I), and possession of cocaine (count II), occurring in
2003. Testimony was presented at his jury trial that a deputy of the
Indian River County Sheriff’s Office was conducting a “buy-walk”
operation, in which an undercover officer goes into an area to make drug
transactions, sometimes with a confidential informant (C.I.), then leaves
with the drugs. The arrest is made later for the safety of the undercover
officer and the confidential informant.

    The deputy provided an undercover detective with money for the buy
and a vehicle equipped with a video camera. The detective testified that
he and a C.I. drove into a certain area and went down a street where
there was a group of men. The detective parked on the side of the street
and within a few seconds a man approached the passenger side. The
video camera recorded a brief conversation between him and the C.I.
The C.I. can be heard using slang to request a quarter of an ounce of
cocaine. The first man left and a few seconds later, a second man,
allegedly Dawson, approached the car. A conversation ensued, and the
second man told the detective and the C.I. to come back in a little bit.
The second conversation also was captured on videotape.

    When they returned, the detective parked thirty to forty feet from
where the men were standing and gave the C.I. two hundred dollars. The
C.I. got out of the car and walked across the street to the group of men.
The detective remained in the car. Watching from the rearview and side
mirrors, the detective testified, he saw the C.I. hand the second man the
money and receive a small object in exchange, but was too far away to
see exactly what it was or to hear their conversation. The C.I. returned
to the car and handed the detective a baggie with a substance in it which
later was confirmed to be cocaine. The drug transaction occurred in the
vicinity of a church. Apparently, the transaction itself was not captured
on videotape. Dawson was arrested about three months later.

   Before trial, the State voluntarily disclosed the C.I.’s name but told
the judge the State did not know his whereabouts, and that he would not
be a state witness.

   During trial, Dawson’s principal defense was that the detective was
mistaken that he was the man who sold the C.I. the drugs. Dawson was
found guilty as charged and was sentenced to forty years in prison as a
habitual felony offender for count I, and to five years in prison for count
II. This court affirmed the convictions, but reversed the consecutive
sentences to be run concurrently. Dawson v. State, 951 So. 2d 931, 934
(Fla. 4th DCA 2007).

   In February 2013, Dawson filed the instant rule 3.850 motion,
claiming newly discovered evidence.     He had located the C.I. and
obtained an affidavit from him, which he attached, contradicting only
some of the detective’s testimony. In the affidavit, the C.I. confirmed
that, on the date in question, he and the detective went to the area to

                                    2
obtain a quarter ounce of cocaine, and that the C.I. told an unknown
male to tell “Roger” he needed a quarter. Dawson appeared and spoke to
the C.I., but there was no transaction. The detective and the C.I. went to
another location, then returned. The C.I. exited the car with the
detective’s money and walked to a spot where eight or nine men were
congregated. There, he picked up a packet of cocaine from a pallet and
left his money on it. He denied giving Dawson money and denied that
Dawson gave him cocaine. He had no conversation with Dawson when
he took the cocaine and left the money. He denied that Dawson sold him
cocaine in a hand-to-hand transaction.

   The C.I. noted that a defense investigator had contacted him in 2009,
but at the time he declined to share these facts, fearing retaliation from
the police. Over the years, he heard he was responsible for Dawson’s
having gone to prison and that police falsely claimed that he (the C.I.)
had bought the cocaine from Dawson in a hand-to-hand transaction.
This troubled him. In June 2012, he was contacted by a relative of
Dawson’s who implored him to cooperate with Dawson’s lawyer and tell
the truth. On June 9, 2012, the C.I. told Dawson’s attorney the facts
contained in the affidavit.

   Dawson maintained the C.I.’s testimony was unavailable to him until
the C.I. decided to provide it in June 2012; Dawson could not have
procured it earlier.

    At the evidentiary hearing, the C.I. acknowledged arranging with
Dawson to purchase the cocaine, and testified, consistent with his
affidavit, that he retrieved it from a pallet in a field and left $200 there.
He knew to get the cocaine from the pallet because everyone’s eyes were
looking at the pallet. Although Dawson was present in the area, the C.I.
insisted there was no hand-to-hand transaction between him and
Dawson. He acknowledged that, until he was approached within the
previous year by Dawson’s relative, he did not tell anyone else about
finding the cocaine on a pallet and putting the money there.

   The deputy testified that after the alleged transaction, he debriefed
both the detective and the C.I. separately, and they both stated
unequivocally that there was a hand-to-hand exchange of money and
cocaine between Dawson and the C.I. The deputy also spoke to the C.I.
just before the hearing, and the C.I. told him that Dawson’s nephew was
harassing him; that was the only reason he signed the affidavit. The
detective testified he was absolutely certain there was a hand-to-hand
transaction between Dawson and the C.I. on the date in question.


                                     3
   The deputy also testified that after the incident, the C.I.’s cell phone
had been disconnected and he had moved without leaving a forwarding
address. There was testimony concerning what efforts each side made to
reach the C.I. before and after the trial.

   Following the hearing, the post-conviction court denied the motion.
As it recognized, two requirements must be met to set aside a conviction
on the basis of newly discovered evidence:

      First, in order to be considered newly discovered, the
      evidence “must have been unknown by the trial court, by the
      party, or by counsel at the time of trial, and it must appear
      that defendant or his counsel could not have known [of it] by
      the use of diligence.” Torres‑Arboleda v. Dugger, 636 So. 2d
      1321, 1324‑25 (Fla. 1994).

         Second, the newly discovered evidence must be of such
      nature that it would probably produce an acquittal on
      retrial. Jones [v. State], 591 So. 2d [911,] 911, 915 [Fla.
      1991]. To reach this conclusion the trial court is required to
      “consider all newly discovered evidence which would be
      admissible” at trial and then evaluate the “weight of both the
      newly discovered evidence and the evidence which was
      introduced at the trial.” Id. at 916.

Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (first alteration in
original).

   The post-conviction court found Dawson met neither prong. First, it
found there was no evidence that the defense had attempted to locate the
C.I. prior to trial. The fact that law enforcement did not know his
whereabouts did not excuse the defense from diligently performing its
own search. Second, the post-conviction court found the C.I.’s testimony
that there was no hand-to-hand transaction was fabricated and simply
was not believable. It found the detective’s testimony was compelling,
and specifically found his and the deputy’s testimony to be credible.
Further, it noted that in the event the C.I. were to testify at a new trial
that there was no hand-to-hand transaction, he could be impeached with
his prior inconsistent statement that there was.

   We affirm based on the second prong: the newly discovered evidence
simply was not of such nature that it probably would produce an
acquittal on retrial.


                                    4
       With respect to a trial court’s ruling on a newly discovered
       evidence claim following an evidentiary hearing, as long as
       the court’s findings are supported by competent, substantial
       evidence, a reviewing court will not “substitute its judgment
       for that of the trial court on questions of fact, likewise of the
       credibility of the witnesses as well as the weight to be given
       to the evidence by the trial court,” Blanco v. State, 702 So.
       2d 1250, 1252 (Fla. 1997) (quoting Demps v. State, 462 So.
       2d 1074, 1075 (Fla. 1984)), but the court’s application of law
       to facts is subject to de novo review. Preston v. State, 970
       So. 2d 789, 798 (Fla. 2007).

Pittman v. State, 90 So. 3d 794, 814 (Fla. 2011). Here, the post-
conviction court’s findings of fact were supported by competent
substantial evidence. In light of all the evidence, the C.I.’s testimony that
there was no hand-to-hand transaction would not substantially weaken
the case against Dawson and give rise to a reasonable doubt as to his
culpability. 1

    Affirmed.

GROSS, FORST and KLINGENSMITH, JJ., concur.




1 Even if a jury were to find the transaction occurred in a manner consistent
with the C.I.’s current version of events, the evidence would lead to an inference
that Dawson arranged to have the drugs placed on the pallet so that the C.I.
could exchange money for the drugs, supporting his conviction for the more
serious charge, sale or delivery of the cocaine within 1000 feet of a church.

                                        5
