Donald David Dillbeck v. State of Florida ( 2020 )

Supreme Court of Florida
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No. SC20-178
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DONALD DAVID DILLBECK,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
September 3, 2020
PER CURIAM.
Donald David Dillbeck, a prisoner under sentence of death, appeals the
circuit court’s order summarily dismissing his third successive motion for
postconviction relief, which was filed under Florida Rule of Criminal Procedure
3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
I. BACKGROUND
Dillbeck was convicted of the 1990 first-degree murder, armed robbery, and
armed burglary of Faye Vann. Dillbeck v. State, 643 So. 2d 1027 (Fla. 1994), cert.
denied, 514 U.S. 1022 (1995). This Court affirmed Dillbeck’s convictions and
sentence of death on direct appeal. Id. at 1028. We thereafter denied Dillbeck’s
petition for a writ of habeas corpus and affirmed the denial of one of his initial
postconviction claims but remanded for the trial court to support its denial of the
remaining claims in Dillbeck’s initial postconviction motion. Dillbeck v. State,
882 So. 2d 969 (Fla. 2004). After remand, this Court affirmed the denial of the
remainder of Dillbeck’s initial postconviction claims. Dillbeck v. State, 964 So. 2d
95 (Fla. 2007). We affirmed the denial of Dillbeck’s first successive motion for
postconviction relief, Dillbeck v. State, 168 So. 3d 224 (Fla. 2015), and his second
successive motion, Dillbeck v. State, 234 So. 3d 558 (Fla.), cert. denied, 139 S. Ct.
162 (2018).
In May 2019, Dillbeck filed his third successive motion for postconviction
relief, in which he raised a single claim of newly discovered evidence based on
reports written in 2019 by three doctors, one of whom diagnosed him with
Neurodevelopmental Disorder associated with Prenatal Alcohol Exposure (ND-
PAE), a diagnosis that was first recognized in the 2013 publication of the
Diagnostic and Statistical Manual, Fifth Edition (DSM-5). Dillbeck alleged that
the results of quantitative electroencephalogram (qEEG) brain scans and
neurocognitive test results, which were not available at the time of trial, revealed
quantifiable brain damage in certain areas of the brain that could explain his
criminal conduct in a manner that the defense experts at trial were unable to
provide. Dillbeck asserted that there is a reasonable probability that the mitigating
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effects of the ND-PAE diagnosis are of such a nature that they would probably
produce a life sentence at a retrial. The trial court dismissed the motion as
untimely. Dillbeck now appeals the dismissal of that motion.
II. ANALYSIS
A motion for postconviction relief must be filed within one year of the date
the defendant’s conviction and sentence become final. Fla. R. Crim. P.
3.851(d)(1). Dillbeck’s conviction and sentence became final when the United
States Supreme Court denied certiorari review of the direct appeal proceedings on
March 20, 1995. Dillbeck v. Florida, 514 U.S. 1022 (1995); see Fla. R. Crim. P.
3.851(d)(1)(B) (“For the purposes of this rule, a judgment is final . . . on the
disposition of the petition for writ of certiorari by the United States Supreme
Court, if filed.”). The one-year time limit therefore expired in 1996. But there is
an exception to the one-year time limit for motions alleging “the facts on which the
claim is predicated were unknown to the movant or the movant’s attorney and
could not have been ascertained by the exercise of due diligence.” Fla. R. Crim. P.
3.851(d)(2)(A). According to Dillbeck, the facts on which his claim is based are
“the new diagnosis of ND-PAE and the qEEG and other neurocognitive test results
supporting it.”
Although the new diagnosis of ND-PAE was included in the DSM-5,
published in 2013, and qEEG scans have been recognized by this Court as being
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used since 2005, see Lebron v. State, 232 So. 3d 942, 954 (Fla. 2017), Dillbeck
claims that the possibility that he might suffer from and meet the diagnostic criteria
for ND-PAE first arose on May 10, 2018, when he was evaluated by Dr. Faye
Sultan, and that May 10, 2018, is the earliest potential date the one-year clock
could have started to file his claim based on this newly discovered evidence. Thus,
he believes this claim was timely filed on May 1, 2019. We disagree.
“To be considered timely filed as newly discovered evidence, the successive
rule 3.851 motion was required to have been filed within one year of the date upon
which the claim became discoverable through due diligence.” Jimenez v. State,
997 So. 2d 1056, 1064 (Fla. 2008). Dillbeck and his counsel knew that Dillbeck
had brain damage related to fetal alcohol exposure even before he was sentenced in
1991. Thus, the facts on which the claim is predicated—a diagnosis of ND-PAE
and qEEG results—could have been discovered by the exercise of due diligence as
early as 2013, when ND-PAE became a diagnosable condition. Dillbeck and his
counsel failed to exercise diligence by waiting until 2018 to pursue evaluation,
testing, and a diagnosis of ND-PAE. Thus, the trial court did not err in dismissing
Dillbeck’s motion as untimely.
III. CONCLUSION
For these reasons, we affirm the circuit court’s order dismissing Dillbeck’s
third successive motion for postconviction relief.
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It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and
COURIEL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Leon County,
J. Lee Marsh, Judge - Case No. 371990CF002795AXXXXX
Baya Harrison III, Monticello, Florida,
for Appellant
Ashley Moody, Attorney General, and Charmaine Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,
for Appellee
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