         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

THOMAS R. LAMB,

             Appellant,

 v.                                                     Case No. 5D16-4266

STATE OF FLORIDA,

           Appellee.
________________________________/


Opinion filed March 10, 2017

3.850 Appeal from the Circuit Court
for Volusia County,
Raul A. Zambrano, Judge.

Richard S. Jackson, DeLand, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kellie A. Nielan, Assistant
Attorney General, Daytona Beach, for
Appellee.

LAMBERT, J.

      Thomas Lamb appeals the order dismissing his Florida Rule of Criminal Procedure

3.850 motion for postconviction relief as time-barred. We agree that the motion was

untimely, but not for the reasons provided by the postconviction court.

      Following a jury trial, Lamb was convicted of two counts of sexual activity with a

child and one count of lewd or lascivious molestation. Lamb appealed his convictions

and sentences, and in 2010, this court affirmed. Lamb v. State, 39 So. 3d 352 (Fla. 5th
DCA 2010). Lamb then timely filed his first rule 3.850 motion for postconviction relief. In

2014, after an evidentiary hearing, the lower court denied Lamb’s motion on the merits,

and we affirmed the denial order on appeal. Lamb v. State, No. 5D14-806, 2015 WL

4380843 (Fla. 5th DCA July 14, 2015).

       Lamb thereafter filed the instant second or successive motion for postconviction

relief.1 In this sworn motion, Lamb asserted eight new grounds for postconviction relief,

which he explained were not raised in his first rule 3.850 motion because he “cannot be

held to the professional standards of an attorney,” and Lamb claimed that the facts

contained in this second motion were “newly discovered” by him at the January 8, 2014

evidentiary hearing held on his first motion. In its order summarily dismissing this motion,

the postconviction court concluded that because Lamb’s judgment and sentences were

final in 2010, and the motion was not filed until January 7, 2016,2 the motion was time-

barred because it was not brought within the two-year time requirements of rule 3.850(b).

The court did not address Lamb’s contention that the grounds raised in this second motion

were newly discovered.

       Lamb argues on appeal that the lower court erred in summarily dismissing his

second rule 3.850 motion without conducting an evidentiary hearing. A postconviction

court is required to conduct an evidentiary hearing on a motion for postconviction relief




       1We separately note that rule 3.850(h) permits the filing of a second or successive
motion for postconviction relief but also allows a court to summarily dismiss a second or
successive motion under certain circumstances. The lower court did not address or
analyze Lamb’s motion under this subsection.
       2  Lamb’s motion was actually filed on November 5, 2015, but it was dismissed as
legally insufficient with leave to amend, which Lamb did.



                                             2
fact” witness were not living with Lamb6 or were otherwise not in Florida.7 In ground three,

Lamb alleged that his counsel was ineffective for failing to investigate and present an alibi

defense, with the “alibi” being that Lamb was actually incarcerated for much of the time

when the instant crimes occurred. Assuming the truthfulness of the factual allegations

contained in these three grounds, it is clear from Lamb’s motion that this evidence is not

newly discovered. First, as reflected in a partial trial transcript attached as an exhibit to

Lamb’s motion, Lamb was present at the hearing held on the first day of trial on his

counsel’s motion in limine to exclude the “similar fact” testimony. Counsel argued that

the prejudicial value of the testimony greatly outweighed any probative value of the

evidence.   The prosecutor provided the trial court with a detailed description and

comparison as to the similarity of the criminal molestation and sexual activity that Lamb

allegedly committed on the victim and on the “similar fact” witness, who are sisters. Lamb

also testified at his trial. Thus, Lamb was present when the “similar fact” witness was not

compelled by his counsel to testify at the “Williams rule” hearing and was present when

the victim and the “similar fact” witness testified two days later at trial as to their

residences and, as to the victim, where and when the instant crimes occurred.8 Next,




       6The crimes were alleged to have been committed by Lamb in the home where
he was residing with the victim.
       7Lamb made other allegations in this ground regarding the victim and “similar fact”
witness that would not have been admissible evidence at trial. We decline to address
these allegations.
       8 To the extent that Lamb argues that the trial court erred in allowing the “similar
fact” witness to testify at trial, any claims of trial court error must be raised on direct
appeal, not in a rule 3.850 motion. See Hodges v. State, 885 So. 2d 338, 355 (Fla. 2004)
(citing Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995)).



                                             5
Second, the facts alleged in the remaining grounds3 for relief asserted in Lamb’s motion

do not constitute evidence because the term “fact” under rule 3.850(b)(1) refers to newly

discovered evidence “that tends to prove or disprove guilt or innocence.” See Coppola v.

State, 938 So. 2d 507, 511 (Fla. 2006) (citing Jones v. State, 591 So. 2d 911, 915 (Fla.

1991) (holding that in order to be entitled to relief under rule 3.850, the defendant must

proffer “newly discovered evidence [that is] of such nature that it would probably produce

an acquittal on retrial”)).

       In ground one of his motion, Lamb argued that his counsel was ineffective for failing

to compel the appearance of a “similar fact” witness at what is commonly referred to as a

“Williams rule”4 pretrial hearing to challenge the credibility of this witness so as to allow

the court to consider whether the witness should be allowed to testify at trial.5 Lamb

asserted in ground two that counsel was ineffective for “failing to investigate” the victim

and the “similar fact” witness and that, if he had done so, counsel would have discovered

that Lamb had previously obtained a restraining order against the victim’s mother, the

victim had a prior criminal conviction, and that during the periods of time that the State

alleged in the information for when the crimes were committed, the victim and the “similar




       3 After Lamb filed his pro se motion for postconviction relief, he retained private
counsel, who filed a notice of appearance. Subsequent to the entry of the order now on
appeal, counsel filed a motion for reconsideration in the lower court, abandoning ground
five of Lamb’s motion for “lack of legal merit” and ground eight of the motion for having
been specifically addressed in Lamb’s first rule 3.850 motion.
       4   Williams v. State, 110 So. 2d 654 (Fla. 1959); see also § 90.404(2)(a), Fla. Stat.
(2008).
       5   The court permitted the “similar fact” witness to testify at trial.



                                                 4
fact” witness were not living with Lamb6 or were otherwise not in Florida.7 In ground three,

Lamb alleged that his counsel was ineffective for failing to investigate and present an alibi

defense, with the “alibi” being that Lamb was actually incarcerated for much of the time

when the instant crimes occurred. Assuming the truthfulness of the factual allegations

contained in these three grounds, it is clear from Lamb’s motion that this evidence is not

newly discovered. First, as reflected in a partial trial transcript attached as an exhibit to

Lamb’s motion, Lamb was present at the hearing held on the first day of trial on his

counsel’s motion in limine to exclude the “similar fact” testimony. Counsel argued that

the prejudicial value of the testimony greatly outweighed any probative value of the

evidence.   The prosecutor provided the trial court with a detailed description and

comparison as to the similarity of the criminal molestation and sexual activity that Lamb

allegedly committed on the victim and on the “similar fact” witness, who are sisters. Lamb

also testified at his trial. Thus, Lamb was present when the “similar fact” witness was not

compelled by his counsel to testify at the “Williams rule” hearing and was present when

the victim and the “similar fact” witness testified two days later at trial as to their

residences and, as to the victim, where and when the instant crimes occurred.8 Next,




       6The crimes were alleged to have been committed by Lamb in the home where
he was residing with the victim.
       7Lamb made other allegations in this ground regarding the victim and “similar fact”
witness that would not have been admissible evidence at trial. We decline to address
these allegations.
       8 To the extent that Lamb argues that the trial court erred in allowing the “similar
fact” witness to testify at trial, any claims of trial court error must be raised on direct
appeal, not in a rule 3.850 motion. See Hodges v. State, 885 So. 2d 338, 355 (Fla. 2004)
(citing Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995)).



                                             5
evidence as to the victim’s alleged prior criminal conviction9 could have been obtained

within the two years of Lamb’s judgment and sentence becoming final with the exercise

of due diligence.10 Finally, as to the dates that Lamb had previously been incarcerated,

when he obtained the restraining order, and when the victim and “similar fact” witness

had previously lived with him, this was information personally known by Lamb prior to

trial. Therefore, for these various reasons, none of the evidence described in the first

three grounds of this second motion was newly discovered. Lamb was required to bring

his claims for postconviction relief based on this evidence within two years of his judgment

and sentences becoming final, which he failed to do.

       In grounds four and six of his motion, Lamb asserted that his counsel was

ineffective for not objecting at trial to certain testimony and to alleged improper

prosecutorial argument. Accepting these allegations as true, counsel’s failure to object

or move for a mistrial is not evidence, let alone newly discovered evidence. See Wilson

v. State, 188 So. 3d 82, 85 (Fla. 3d DCA 2016) (“[I]t is the discovery of the existence of

admissible evidence demonstrating that [the defendant] was not the person who

committed the crime that renders such evidence ‘newly-discovered’ and permits [the

defendant] to assert this evidence in support of a motion for relief under rule 3.850.” (citing

Archer v. State, 934 So. 2d 1187, 1194 (Fla. 2006); Nordelo v. State, 93 So. 3d 178, 185

(Fla. 2012); Jones v. State, 106 So. 3d 88 (Fla. 3d DCA 2013); Harris v. State, 128 So.




       9Lamb alleged that the conviction was for “breaking and entering.”
       10As reflected in Lamb’s motion and by the convictions in this case, the victim is a
child. We note that if the adjudication occurred when the victim was a minor, section
90.610(1)(b), Florida Statutes (2009), makes evidence of juvenile adjudications
inadmissible for impeachment purposes.



                                              6
3d 44, 46 (Fla. 3d DCA 2012))). Lastly, Lamb’s complaint in ground seven is that his trial

counsel from the public defender’s office did not obtain his “original file” back 11 from a

different attorney in the same office who had also represented Lamb in this case, and

therefore, trial counsel was not ready for trial and did not prepare a “defense.” This is not

evidence nor does Lamb explain in this amended second rule 3.850 motion the nature of

the defense that his counsel should have presented and makes conclusory allegations

that counsel was not prepared. Having previously taken advantage of the opportunity to

amend his motion, Lamb’s conclusory allegations in this ground are properly summarily

denied. See Spera v. State, 971 So. 2d 754, 759 (Fla. 2007); Oquendo v. State, 2 So.

3d 1001, 1004 (Fla. 4th DCA 2008).

       Accordingly, we affirm the summary dismissal of Lamb’s present motion as time-

barred on “tipsy coachman” grounds. See Foss v. State, 24 So. 3d 1275, 1276–77 (Fla.

5th DCA 2009) (affirming order on appeal under the “tipsy coachman” rule because the

trial court reached the right conclusion (citing Sullivan v. State, 913 So. 2d 762 (Fla. 5th

DCA 2005))).

       AFFIRMED.

PALMER and BERGER, JJ., concur.




       11  Lamb’s trial counsel was the first counsel assigned by the public defender’s
office to represent Lamb in these proceedings. Apparently, different attorneys in the office
later represented Lamb before the case was returned to trial counsel.

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