Third District Court of Appeal
State of Florida
Opinion filed March 10, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1136
Lower Tribunal No. F83-29429
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Joseph Ramirez,
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, Ramiro C. Areces, Judge.
Joseph Ramirez, in proper person.
Ashley Moody, Attorney General, and Richard L. Polin, Assistant
Attorney General, for appellee.
Before EMAS, C.J., and FERNANDEZ, and MILLER, JJ.
MILLER, J.
Appellant, Joseph Ramirez, challenges the summary denial of his
successive motion for postconviction relief, alleging newly discovered
evidence under Florida Rule of Criminal Procedure 3.850. His motion below
was grounded upon a claim that the testifying serologist at his trials, the final
of which was conducted well over a decade ago, exaggerated her
educational qualifications. 1 See Ramirez v. State,
75 So. 3d 739 (Fla. 3d
DCA 2011). It is axiomatic this information, if indeed true, could have been
discovered long ago through a diligent request for available records from the
relevant educational institution. See Tompkins v. State,
994 So. 2d 1072,
1086 (Fla. 2008) (In order to prevail on a newly discovered evidence claim,
“the evidence must not have been known by the trial court, the party, or
counsel at the time of trial, and it must appear that the defendant or defense
counsel could not have known of it by the use of diligence.”); Demps v. State,
515 So. 2d 196, 198 (Fla. 1987) (“[I]ssues [which] could have and should
1
As the motion below was filed more than two years after the judgment and
sentence became final, Ramirez was required to show “the facts on which
the claim is predicated were unknown to [him] or [his] attorney and could not
have been ascertained by the exercise of due diligence” in order for the
motion to be untethered by the rule’s underlying time restraints. See Fla. R.
Crim. P. 3.850(b)(1) (“No other motion shall be filed or considered pursuant
to this rule if filed more than [two] years after the judgment and sentence
become final unless it alleges that: (1) the facts on which the claim is
predicated were unknown to [him] or [his] attorney and could not have been
ascertained by the exercise of due diligence.”).
2
have been raised either on direct appeal or in [the defendant’s] first request
for post conviction relief . . . are . . . procedurally barred.”) (citations omitted);
see also Johnston v. State,
27 So. 3d 11, 22 (Fla. 2010) (“[T]here was no
merit to [the defendant’s] postconviction claim that information about
Bunker's qualifications constituted newly discovered evidence in this case.”)
(citation omitted); Correll v. State,
698 So. 2d 522, 524 (Fla. 1997) (“[T]he
evidence proffered by [the defendant] does not qualify as newly discovered
evidence because it was discoverable at the time of trial. However, even if
the evidence was not discoverable at the time of trial, the discrepancies
between the level of education, training, and experience Bunker testified to
at trial and the asserted level of education, training, and experience she
actually had were not so great as to make any difference in the outcome of
the case.”). Accordingly, we affirm the well-reasoned order under review.
Affirmed.
3
