Third District Court of Appeal
State of Florida
Opinion filed March 9, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1593
Lower Tribunal No. F15-3835
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Rodrick Wimblery,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Alberto Milian, Judge.
Daniel J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.
Ashley Moody, Attorney General, and Joanne Diez, Assistant Attorney
General, for appellee.
Before EMAS, MILLER and LOBREE, JJ.
PER CURIAM.
Rodrick Wimblery appeals from the trial court’s order which denied,
without evidentiary hearing, his motion for postconviction relief filed pursuant
to Florida Rule of Criminal Procedure 3.850. In his postconviction motion,
Wimblery asserted two claims: (1) the posttrial affidavit executed by
Jonathan Labrada, the victim, qualifies as newly discovered evidence and is
of such a nature that it would probably produce an acquittal on retrial; and
(2) trial counsel provided ineffective assistance of counsel for eliciting from
the lead detective, during his trial testimony, that the defendant invoked his
right to remain silent.
We affirm without discussion the trial court’s order summarily denying
the second claim. However, because the record fails to show conclusively
that the appellant is entitled to no relief on the first claim, see Florida Rule of
Appellate Procedure 9.141(b)(2)(D), 1 we reverse that portion of the trial
court’s order and remand this cause for an evidentiary hearing on the issue
of whether the averments contained in the affidavit of the victim, Jonathan
Labrada, constitute newly discovered evidence, and, if so, whether such
1
Rule 9.141(b)(2)(D), addresses the proper disposition of an appeal from a
summary denial of a motion for postconviction relief:
On appeal from the denial of relief, unless the record shows
conclusively that the appellant is entitled to no relief, the order
shall be reversed and the cause remanded for an evidentiary
hearing or other appropriate relief.
2
newly discovered evidence is of such nature that it would probably produce
an acquittal on retrial. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (Jones
II) (holding that to be considered newly discovered evidence, the evidence
(1) “must have been unknown by the trial court, by the party, or by counsel
at the time of trial, and it must appear that defendant or his counsel could not
have known [of it] by the use of diligence”; and (2) “the newly discovered
evidence must be of such nature that it would probably produce an acquittal
on retrial”) (quotations omitted).
Affirmed in part, reversed in part, and remanded with instructions.
3