         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


KENNETH ROBINSON,

             Appellant,

 v.                                                     Case No. 5D16-43

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed July 15, 2016

3.850 Appeal from the Circuit Court
for Lake County,
William G. Law, Jr, Judge.

Kenneth Robinson, Crawfordville, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Kenneth Robinson appeals the trial court’s summary denial of his motion for

postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, asserting

newly discovered evidence. We reverse.

      Robinson’s untimely and otherwise successive motion for postconviction relief

asserted newly discovered evidence. In sum, he alleged that a fellow inmate would testify
that the State’s main witness against Robinson recanted his testimony and admitted lying

at Robinson’s trial. Under rule 3.850(c), “[i]f the defendant is filing a newly discovered

evidence claim based on . . . a newly discovered witness, the defendant shall include an

affidavit from that person as an attachment to his or her motion. . . . If the affidavit is not

attached to the motion, the defendant shall provide an explanation why the required

affidavit could not be obtained.” Here, Robinson acknowledged that he had not attached

an affidavit from the witness to his motion. Instead, he contends that no such supporting

affidavit was required; only a brief statement of facts in support of the motion. See

Roundtree v. State, 884 So. 2d 322, 323 (Fla. 2d DCA 2004). While Robinson correctly

recites Roundtree’s holding, that principle is no longer valid in light of the amendment to

rule 3.850(c), effective July 1, 2013. See In re Amendments to Fla. Rules of Criminal

Procedure & Fla. Rules of Appellate Procedure, 132 So. 3d 734, 738 (Fla. 2013) (“We

amend subdivision (c) (Contents of Motion) in several ways, as proposed. . . .           [I]t is

amended to require that newly discovered evidence claims be supported by affidavits

attached to the motion.”). Further, while the trial court considered this matter on its merits,

the record attachments do not conclusively refute this claim.

       Because Robinson’s motion was facially insufficient, the trial court should have

stricken it with leave to amend within the time frame provided by rule 3.850(b)(1). We

reverse for further proceedings consistent with this opinion.

       REVERSED and REMANDED.



ORFINGER, WALLIS and EDWARDS, JJ., concur.




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