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
JAMES M. NEWTON,
Appellant,
v. Case No. 5D16-4339
STATE OF FLORIDA,
Appellee.
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Opinion filed April 13, 2017
3.850 Appeal from the Circuit Court
for Citrus County,
Richard A. Howard, Judge.
James M. Newton, Orlando, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marjorie Vincent-Tripp,
Assistant Attorney General, Daytona
Beach, for Appellee.
EVANDER, J.
James Newton was convicted of DUI manslaughter and two counts of DUI with
property damage. In March 2015, this court affirmed Newton’s convictions. Newton v.
State, 160 So. 3d 524 (Fla. 5th DCA 2015). Thereafter, Newton filed a motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising
fourteen claims. In March 2016, the trial court entered an order summarily denying
Newton’s motion. Newton appealed, and we reversed as to claims eight, twelve, thirteen,
and fourteen. We remanded for the trial court to either attach portions of the record
refuting each of these claims or hold an evidentiary hearing. Newton v. State, 201 So. 3d
1243 (Fla. 5th DCA 2016). On remand, the trial court attached additional documents to
its order, but again summarily denied claims eight, twelve, thirteen, and fourteen. Newton
then appealed the remanded order. We reverse the summary denial of Newton’s twelfth
claim, but otherwise affirm.
At trial, the evidence established that on the evening in question, Newton and the
victim left a bar in Newton’s pick-up truck. Approximately four miles later, the truck veered
off the road, causing the driver to lose control of the vehicle. The truck then slid back
across the road, went through a fence, collided with a power pole and tree, overturned,
and came to rest upside down in a field. The victim was ejected from the truck and died
as a result of blunt force trauma. Newton was found still trapped in the truck with his feet
between the steering wheel and ceiling. Newton suffered significant injuries and had no
recollection of the evening’s events.
Newton’s defense was that the victim was the vehicle’s driver. The State
presented testimony from two expert witnesses, an accident reconstruction expert and a
forensic engineer, who both opined that Newton had been the driver. Newton produced
the testimony of Robert Drawdy, a retired traffic homicide investigator, who opined that
the victim had been the driver.
In claim twelve of his motion for postconviction relief, Newton alleged that his trial
counsel was ineffective for failing to properly prepare Drawdy as the defense expert
witness. Newton’s motion included an affidavit from Drawdy in which Drawdy claimed,
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inter alia, that defense counsel failed to discuss the case with him and failed to provide
the exhibits he requested for trial. In summarily denying this claim, the trial court cited to
various portions of Drawdy’s trial testimony and concluded:
There is no evidence that the expert’s testimony was not
credible or that he lost credibility; or that the expert was not
provided required additional information. Therefore, the
defendant has failed to demonstrate that trial counsel failed to
properly prepare the expert witness and that the outcome of
the case would have been different.
However, the essence of Newton’s claim was that Drawdy’s testimony would have been
different and more effective, but for trial counsel’s alleged ineffectiveness during trial
preparation. The transcript excerpts attached to the trial court’s order were insufficient to
conclusively refute that claim.
On remand, the trial court must either attach records conclusively refuting
Newton’s twelfth claim, or hold an evidentiary hearing.
AFFIRMED, in part; REVERSED, in part; and REMANDED.
LAMBERT and EDWARDS, JJ., concur.
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