       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           PATRICK PLACIDE,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-2744

                              [April 8, 2015]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Bernard I. Bober,
Judge; L.T. Case No. 9120130CF10A.

   Patrick J. Curry, Fort Lauderdale, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Catherine Linton,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    We affirm the trial court’s summary denial of Patrick Placide’s untimely
and successive motion for postconviction relief. Placide’s motion claimed
that he has recently discovered new evidence that jurors allegedly engaged
in misconduct during his trial in 1992. We conclude that the affidavit
alleged to constitute the new evidence is inherently incredible and not
properly sworn. In addition, Placide fails to establish a valid exception to
the time limitation, as he does not show that he exercised any diligence in
investigating this claim, which could have been discovered with due
diligence.

   Placide was convicted after jury trial in July 1992 for first degree
murder, attempted first degree murder, robbery, and burglary of a
dwelling. He was sentenced to life for the murder and terms of years on
the other counts. This Court affirmed the convictions and sentences in
1995. Placide v. State, 652 So. 2d 831 (Fla. 4th DCA 1995) (table)
(mandate issued April 21, 1995). The two-year time limit for filing a
postconviction motion expired in 1997. Placide has filed a number of
postconviction challenges and appeals, including three prior appeals from
the denial of rule 3.850 motions.1

   In April, 2014, Placide filed this successive and untimely rule 3.850
motion alleging newly discovered evidence and requesting a new trial
based on juror misconduct. He claims that in 2013 his family was
discussing whether to continue retaining counsel for him for a federal
habeas corpus petition challenging the use of restraints during trial. A
family friend, Marie Blackwell, who had allegedly attended the trial,
happened to be present when two jurors were discussing Placide’s
appearance in shackles, the jurors indicating that he must be dangerous.
The motion was sworn and accompanied by an affidavit from Blackwell.

    In the affidavit, Blackwell avers that one female juror questioned the
other as to, “Why Patrick was shackled down like that?” The other
allegedly responded, “He must be guilty or very dangerous.” Blackwell
asserts that she was upset and told them he was innocent. She then avers,
“I was then worried I might get in trouble for speaking in his defense. . . I
wish I would’ve said something sooner. I recently became informed that
as a juror discussing trial matters outside of the trial is against the law.”
Placide alleges that he first learned of Blackwell’s statement in January
2014.

    As explained in the state’s response below, defendant raised an issue
regarding the use of restraints during trial in his successive rule 3.850
motion in 2005. Placide has been aware that he was shackled since the
time of trial. The new evidence in this case is the affidavit from a family
friend who allegedly overheard jurors talking about the defendant being
shackled during trial in 1992. She allegedly revealed this for the first time
in 2013 – more than twenty years later.

   The trial court denied the motion based on the State’s response and
denied rehearing. This appeal followed.

   Newly discovered facts can provide an exception to the two-year time
limit for bringing a postconviction motion where:

       (1) the facts on which the claim is predicated were unknown
       to the movant or the movant’s attorney and could not have
       been ascertained by the exercise of due diligence, and the
       claim is made within 2 years of the time the new facts were or

1   Case numbers 4D03-2945, 4D07-3768, and 4D08-1149.


                                     2
      could have been discovered with the exercise of due
      diligence[.]

Fla. R. Crim. P. 3.850(b)(1). Placide relies on this exception to excuse the
untimeliness of his claim of alleged juror misconduct. Rule 3.850(c)
requires: “If the defendant is filing a newly discovered evidence claim based
on recanted trial testimony or on a newly discovered witness, the
defendant shall include an affidavit from that person as an attachment to
his or her motion.” We conclude that Blackwell’s affidavit, which Placide
attached to his motion, is inherently incredible and not properly sworn.

   The Florida Supreme Court, and this Court, have recognized that,
“there may be cases where, from the face of the affidavit, it can be
determined that the affidavit is ‘inherently incredible.’” McLin v. State, 827
So. 2d 948, 955 (Fla. 2002) (citing Robinson v. State, 736 So. 2d 93, 93
(Fla. 4th DCA 1999)); see also Andrews v. State, 919 So. 2d 552, 553 (Fla.
4th DCA 2005). This is such a case.

    Blackwell in her affidavit asserts that she witnessed the alleged
conversation between jurors in the hallway during “the trial recess” in
1992. First, Blackwell does not specify at what point in the proceedings
she allegedly witnessed this conversation. Nevertheless, this alone does
not make the affidavit inherently incredible. The key factor that leads us
to this conclusion is the extreme length of time that elapsed between the
alleged event and the witness’s reporting.

   Blackwell asserts that she witnessed jurors discussing the case in 1992
and that one juror allegedly expressed the belief that the defendant was
guilty and must be dangerous because he was shackled. Although she
claims that she believed in Placide’s innocence and defended it to the
jurors, Blackwell alleges she did not report this to anyone until 2013 when
she happened to be at Placide’s house when his family was discussing the
shackling issue. Blackwell states she did not come forward sooner
because she allegedly did not know it was improper for the jurors to have
this discussion. We are asked to believe that she thought it was
appropriate for jurors to prejudge a defendant’s guilt and dangerousness.
Blackwell asserts that she did not report the conversation to the judge,
because she thought she would get in trouble for speaking in his defense.
This does not explain, however, why she would not have revealed this
information to Placide’s trial counsel or to Placide or Placide’s family
members in the twenty-plus years that followed. The circumstances are
simply beyond what any reasonable person could accept as credible.



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   Contributing to our conclusion that the affidavit is incredible, we note
that Blackwell has not sworn to her statement under penalty of perjury.
The affidavit states: “I SWEAR OR AFFIRM THAT THE ABOVE AND
FOREGOING REPRESENTATIONS ARE TRUE AND CORRECT TO THE
BEST OF MY INFORMATION, KNOWLEDGE, AND BELIEF.”                          This
statement would be insufficient to constitute a signed, written declaration
under section 92.525(2), Florida Statutes (2014). Among other things, a
written declaration must state that it is made “[u]nder penalties of
perjury.” § 92.525(2), Fla. Stat. (2014). The qualifying language, “to the
best of my information, knowledge, and belief,” is an insufficient oath to
support a postconviction motion. State v. Shearer, 628 So. 2d 1102, 1103
(Fla. 1993) (holding that the qualifying language that allegations were “true
and correct to the best of his knowledge” was insufficient).

  The affidavit is further insufficient because it does not reflect that it
was sworn to before an individual authorized to administer oaths.

      “An affidavit is by definition a statement in writing under an
      oath administered by a duly authorized person. . . .” Youngker
      v. State, 215 So. 2d 318, 321 (Fla. 4th DCA 1968) (citing
      Black's Law Dictionary, (4th ed.)). “An oath is an unequivocal
      act, before an officer authorized to administer oaths, by which
      the person knowingly attests to the truth of a statement and
      assumes the obligations of an oath.” State v. Johnston, 553
      So. 2d 730, 733 (Fla. 2d DCA 1989) (citations omitted); see
      also Youngker, 215 So. 2d at 321 (“An oath may be
      undertaken by any unequivocal act in the presence of an
      officer authorized to administer oaths by which the declarant
      knowingly attests the truth of a statement and assumes the
      obligation of an oath.”) (citation omitted).

Crain v. State, 914 So. 2d 1015, 1019 (Fla. 5th DCA 2005). Section
92.50(1), Florida Statutes (2014), recognizes that an affidavit must be
sworn to before a person authorized to administer oaths. Id.; see also
Jackson v. State, 881 So. 2d 666, 668 (Fla. 5th DCA 2004).

    Blackwell’s purported oath contains improper qualifying language that
equivocates as to the truth of the statement and is not made under penalty
of perjury. The statement signed by the notary provides only: “I, the
undersigned Notary Public, do hereby affirm that Marie Blackwell
personally appeared before me on the 20th of MARCH 2014, and signed
the above Affidavit as his [sic] free and voluntary act and deed.” The notary
affirms merely that Blackwell signed the statement, not that she made the


                                     4
statement under oath. Thus, the statement is not properly verified and is
insufficient to support a newly-discovered-evidence claim.

    Finally, we conclude that Placide’s claim fails on its face as the issue
could have been discovered with due diligence and raised in a timely
manner. Placide does not allege anywhere that he exercised any diligence
in investigating possible juror misconduct at any time in the twenty years
before Blackwell made her statement. Yet, Placide first raised his claim
regarding shackling in 2005. The thrust of that claim was that the jury
may have been prejudiced against him based on seeing him in shackles
during trial. Placide does not allege that he used any diligence in seeking
to discover whether any jurors saw him in shackles when he brought those
proceedings in state and federal courts. The information in this case
comes in the form of hearsay from a family friend, not from a juror, and
there is no allegation that this friend was unavailable to Placide, Placide’s
lawyer, or his family in the more than twenty years before the information
materialized in 2013.

  Accordingly, we affirm the summary denial of the postconviction
motion.

   Affirmed.

WARNER, GERBER and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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