NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
HAROLD BLAKE, )
)
Appellant, )
)
v. ) Case Nos. 2D13-2503
) 2D14-3410
STATE OF FLORIDA, )
) CONSOLIDATED
Appellee. )
)
___________________________________)
Opinion filed November 19, 2014.
Appeals pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; Catherine L. Combee,
Judge.
Linda McDermott of McClain & McDermott,
P.A., Estero, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Christina Zuccaro,
Assistant Attorney General, Tampa,
for Appellee.
PER CURIAM.
Harold Blake appeals the orders summarily denying two motions for
postconviction relief filed under Florida Rule of Criminal Procedure 3.850 in the same
circuit court case. We consolidate the cases only for purposes of this opinion.
Case No. 2D13-2503
In case number 2D13-2503, Mr. Blake seeks review of the denial of his
motion that contained three grounds. We affirm the denial of grounds one and two
without comment, but we reverse the denial of ground three and remand for the
postconviction court to afford Mr. Blake an opportunity to amend his claims of newly
discovered evidence.
Mr. Blake was charged with first-degree murder and attempted armed
robbery with a firearm for events that occurred on August 1, 2002. His first two trials
ended in mistrials, and he was found guilty as charged by a jury at his third trial. The
trial court sentenced him to terms of life and fifteen years in prison. Mr. Blake appealed
his convictions and sentences, and this court affirmed without written opinion. Blake v.
State, 950 So. 2d 419 (Fla. 2d DCA 2007) (table decision).1
On April 6, 2012, Mr. Blake filed a motion under rule 3.850, alleging in
ground three that newly discovered evidence established that his convictions and
sentences violate the Eighth and Fourteenth Amendments to the United States
Constitution. Primarily, he claims that several witnesses admit that they lied at his trial.
Mr. Blake's motion alleges that Mr. Preston, who testified at the trial that Mr. Blake
1
Mr. Blake was also convicted of another murder that occurred on
August 12, 2002. In that case, he was sentenced to death. His judgment and sentence
were affirmed on appeal. See Blake v. State, 972 So. 2d 839 (Fla. 2007). The case
that is currently before this court concerning the August 1 murder was apparently used
as an aggravator in the sentencing phase of that case. There is an overlap of witnesses
in the two cases. The postconviction proceedings in this case and the death penalty
case have been handled by two different circuit court judges. We do not know from our
record whether the proceedings in the other case involved claims similar to the claims
we address today.
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confessed to shooting the victim, now claims that his testimony was false. Likewise, Mr.
Blake alleges that another significant witness, Mr. Jones, now claims that his testimony
at the trial was false. Mr. Blake further alleges that the substance of Mr. Jones'
admissions casts substantial doubt on the veracity of Richard Green,2 the cofelon who
placed Mr. Blake at the scene of the crimes in this case. Finally, Mr. Blake alleges that
Ms. Watson admitted that she lied to the police about overhearing his confession to Mr.
Preston and also that the State failed to disclose evidence that revealed Ms. Watson's
statements were false.
The postconviction court denied Mr. Blake's motion as untimely, which is a
correct ruling for the first two claims. But the court did not acknowledge or address Mr.
Blake's claims of newly discovered evidence. A claim of newly discovered evidence can
be an exception to the two-year time limitation in rule 3.850(b). Fla. R. Crim. P.
3.850(b)(1). If the postconviction court had addressed Mr. Blake's claims of newly
discovered evidence, we conclude that the court would have been required to strike the
claims as insufficiently pleaded.
This court has explained that because rule 3.850(b) requires a claim of
newly discovered evidence to be filed within two years from the date the evidence could
have been discovered with the exercise of due diligence, a defendant must "not only
allege but also demonstrate that his motion was filed within two years from the date that
2
Mr. Green was convicted of first-degree murder, attempted robbery with a
firearm, and grand theft of an automobile for his role in the August 12, 2002, murder
referenced in footnote 1. This court affirmed his judgments and sentences in case
number 2D05-273, and Mr. Green is serving a life sentence. Green v. State, 954 So. 2d
33 (Fla. 2d DCA 2007) (table decision).
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the evidence could have been discovered." Burns v. State, 110 So. 3d 96, 97 (Fla. 2d
DCA 2013). In his motion, Mr. Blake did not allege when or how he learned of the
newly discovered facts. In that respect, his claims were insufficiently pleaded.
When claims in a postconviction motion are facially insufficient, the
postconviction court should strike the claims with leave to amend within a reasonable
time. See Burns, 110 So. 3d at 97; Fletcher v. State, 53 So. 3d 1249, 1252 (Fla. 4th
DCA 2011) (holding Spera v. State, 971 So. 2d 754, 761 (Fla. 2007), applies to
insufficiently pleaded claims of newly discovered evidence); see also Davis v. State, 26
So. 3d 519, 527 (Fla. 2009) (extending Spera to successive postconviction motions
raising claims of newly discovered evidence under rule 3.851(e)(2)(C)).3 Accordingly,
we reverse the portion of the postconviction court's order that summarily denied ground
three of Mr. Blake's motion and remand for the postconviction court to strike ground
three and provide Mr. Blake with sixty days to amend.
Case No. 2D14-3410
In case number 2D14-3410, Mr. Blake appeals the denial of a second
motion that raised claims of newly discovered evidence based on the testimony of Mr.
Jones and Mr. Preston at the evidentiary hearing in his death penalty case. The trial
3
The postconviction court issued its order in this case before the effective
date of the 2013 amendments to rule 3.850. The 2013 amendments to rule 3.850(d)
were intended to codify existing case law and address the different options that the
postconviction court has when considering a motion under this rule. See In re
Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate
Procedure, 132 So. 3d 734, 738 (Fla. 2013). The current rule does not expressly
address a situation such as this, where the facial insufficiency precludes the
postconviction court from determining whether the motion is timely, but treating such a
motion as a timely but insufficient motion under rule 3.850(f)(2) would effectuate the
intent of the amendment.
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court dismissed that motion due to the pending appeal in case number 2D13-2503.
Although it may have been correct for the trial court to dismiss or stay proceedings on
this motion, given the relief we grant in case number 2D13-2503, the issues raised in
this appeal are now moot. Accordingly, we dismiss this appeal, recognizing that Mr.
Blake's counsel is authorized on remand to file an amended claim of newly discovered
evidence.
Case number 2D13-2503 is affirmed in part, reversed in part, and
remanded; case number 2D14-3410 is dismissed.
ALTENBERND, KHOUZAM, and BLACK, JJ., Concur.
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