        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           ADALBERTO RAMOS,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D17-1924

                             [January 23, 2019]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Martin S. Fein, Judge;
L.T. Case No. 062008CF002567A88810.

    Adalberto Ramos, Miami, pro se.

  Ashley B. Moody, Attorney General, Tallahassee, and Melanie Dale
Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

    Adalberto Ramos raises seventeen points in his appeal of the circuit
court’s denial of his Florida Rule of Criminal Procedure 3.850 motion. 1 We
affirm, without comment, sixteen of the points. For the final issue, Ramos
argues the court erred when it failed to hold an evidentiary hearing to
evaluate his claim that a witness at trial recanted her testimony. We agree
and reverse.

    The recanting witness, who is the victim’s older sister, stated in an
affidavit that she informed another sister that Ramos was “innocent.” The
other sister also signed an affidavit affirming the conversation and stating
that the recanting witness “said the detectives were [ ] telling her and
putting fear into her that she was going to go to jail, if she didn’t testify.”
The other sister also stated that the recanting witness started the
conversation.


1We have issued two prior opinions in this case. See Ramos v. State, 178 So. 3d
941 (Fla. 4th DCA 2015); Ramos v. State, 75 So. 3d 1277 (Fla. 4th DCA 2011).
    The circuit court found that the claim was “legally sufficient” but
refuted by the record. The court explained that the other sister did not
testify at trial and did not influence the verdict. After reviewing the court
file and the State’s response to Ramos’s motion, the court found the
“equivocal statements contained in [the recanting witness’s] affidavit” were
“not credible.”

    Florida courts view the recantation of testimony as “exceedingly
unreliable.” Lambrix v. State, 39 So. 3d 260, 272 (Fla. 2010) (quoting
Heath v. State, 3 So. 3d 1017, 1024 (Fla. 2009)). Because recantation is
viewed with suspicion, when a State witness recants her testimony, a new
trial is required “only if the 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.’” Robinson v. State, 736 So. 2d 93, 93 (Fla.
4th DCA 1999) (quoting Armstrong v. State, 642 So. 2d 730, 735 (Fla.
1994)).

    In making this determination, an evidentiary hearing is usually
required. Id. (citations omitted). And the court must “examine all the
circumstances of the case, including the testimony of the witnesses
submitted on the motion for the new trial.” Sweet v. State, 248 So. 3d
1060, 1066 (Fla. 2018) (quoting Consalvo v. State, 937 So. 2d 555, 561
(Fla. 2006)). But “[i]f a postconviction court ‘is not satisfied that the
recanted testimony is true, it has a duty to deny the defendant a new trial.’”
Id. (emphasis removed) (quoting Heath, 3 So. 3d at 1024).

   Here, there was no physical evidence presented in the underlying trial
and the recanting witness was one of the main witnesses for the State.
The jurors also asked questions during trial seeking medical evidence and
asked the court to reread the witnesses’ testimony.

    Similar to Robinson, we are unable to conclude that the statements in
the affidavits in support of Ramos’s motion were “inherently incredible or
that [the] trial testimony was obviously immaterial to the verdict, so as to
allow the trial court to reject [the] recantation without holding an
evidentiary hearing.” 736 So. 2d at 93.

   The court’s order denying Ramos’s motion is affirmed in part and
reversed in part. We affirm without comment sixteen of the points raised
on appeal, but we reverse and remand for the court to hold an evidentiary
hearing on Ramos’s claim about the recanting witness.

   Affirmed in part, reversed in part, and remanded for further proceedings.


                                      2
CIKLIN and CONNER, JJ., concur.

                          *       *        *

   Not final until disposition of timely filed motion for rehearing.




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