NAYLOR V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 10-2011

Case Date: 12/29/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed December 29, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-2011 Lower Tribunal No. 97-29034-B ________________

Ezra Naylor,
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, Diane Ward, Judge. Clayton R. Kaeiser, for appellant. Bill McCollum, Attorney General, for appellee. Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ. ROTHENBERG, J. In 1999, Ezra Naylor ("the defendant") was convicted of the first-degree murder of Shawn Duncombe ("the victim"), and sentenced to life imprisonment.

The defendant appeals the trial court's summary denial of his 2009 motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm. In his motion, the defendant claims he is entitled to a new trial on the basis of newly discovered evidence. The newly discovered evidence is a 1997 statement allegedly made by the now-deceased victim to a fellow inmate, that Jacqueline Mesidor, the arresting officer in this case, "had [the victim's] back with other polices [sic] and dealers." Such a claim is subject to a two-prong test: (1) the evidence must have been unknown at the time of trial (and it must appear incapable of being known by the use of due diligence) by the defendant, defense counsel and the trial court; and (2) the evidence must be of such nature that it would probably produce an acquittal on retrial. Jones v. State, 709 So. 2d 512, 521 (Fla. 1997). We conclude that the first prong of the test has been satisfied. As to the second prong, the trial court found that the "newly discovered evidence" was inadmissible, and thus was not of such a nature that it would probably produce an acquittal on retrial. We review this ruling for an abuse of discretion. Carpenter v. State, 785 So. 2d 1182, 1201 (Fla. 2001). The trial court found that the victim's alleged statement was inadmissible as an exception to the hearsay rule because it did not tend to expose the declarantvictim to criminal liability. We agree. See

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