Third District Court of Appeal
State of Florida
Opinion filed July 21, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-335
Lower Tribunal No. F98-14364
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Negus Delhall,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Teresa Mary
Pooler, Judge.
Negus Delhall, in proper person.
Ashley Moody, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellee.
Before EMAS, SCALES and MILLER, JJ.
PER CURIAM.
Negus Delhall appeals from an order denying his motion for
postconviction relief filed pursuant to Florida Rule of Criminal Procedure
3.850. 1 Delhall’s motion was premised upon claims of newly discovered
evidence. We affirm the trial court’s order in all respects.
1
The order on appeal was rendered on August 13, 2020. Nearly two months
later, on October 9, 2020, the trial court issued a separate order purporting
to grant Delhall an extension of sixty days (until December 8, 2020) to file a
notice of appeal of the August 12, 2020, order. Delhall did not seek review
of the August 13th order until January 19, 2021, and ultimately did so by
petition for belated appeal pursuant to Florida Rule of Appellate Procedure
9.141(c). This court granted that petition for belated appeal, see Delhall v.
State, 3D20-1962, allowing Delhall to pursue this appeal. While this court
has the authority under appropriate circumstances to grant a belated appeal
in a criminal case, we write to remind trial court judges that the thirty-day time
limit for filing a notice of appeal is jurisdictional, and the trial court is without
authority to enter an order “extending” the deadline within which a defendant
must invoke this court’s jurisdiction. Epicor Software Corp. v. Coopers &
Clarke, Inc.,
928 So. 2d 1249, 1251 (Fla. 3d DCA 2006) (noting that
“jurisdictional time limits such as the time for filing a notice of appeal or a
motion for a new trial, may not be extended for any reason”) (quoting Bank
One, N.A. v. Batronie,
884 So. 2d 346, 349 (Fla. 2d DCA 2004)); Cordero v.
Washington Mut. Bank,
241 So. 3d 967, 968 (Fla. 3d DCA 2018) (holding:
“An untimely appeal of a prior order cannot be revived by obtaining a new
order to the same effect as the original and then filing the notice of appeal
within thirty days of that most recent order.”); Gunn v. State,
721 So. 2d 1251
(Fla. 4th DCA 1998) (holding “trial court did not have jurisdiction to extend
the time within which appellant could file his notice of appeal). See also
Slocum v. State,
95 So. 3d 911 (Fla. 1st DCA 2012) (dismissing, for lack of
jurisdiction, defendant’s appeal from order denying motion for postconviction
relief because defendant failed to file notice of appeal within thirty days of
rendition of the trial court’s order); Caldwell v. Wal-Mart Stores, Inc.,
980 So.
2d 1226 (Fla. 1st DCA 2008); Taylor v. Greenpoint Mortg. Corp.,
939 So. 2d
137 (Fla. 4th DCA 2006).
2
Generally, a motion seeking postconviction relief under rule 3.850 will
not be considered “if filed more than 2 years after the judgment and sentence
become final. . . .” Fla. R. Crim. P. 3.850(b). However, when a
postconviction claim is premised upon newly discovered evidence, a movant
may seek relief beyond the two-year limitation if the motion alleges:
[T]he 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, and the claim is
made within 2 years of the time the new facts were or could have
been discovered with the exercise of due diligence.
Fla. R. Crim. P. 3.850(b)(1).
The trial court made a preliminary determination that Delhall’s motion
contained one or more facially sufficient claims of newly discovered
evidence, and properly granted an evidentiary hearing to resolve these
claims. Harris v. State,
128 So. 3d 44, 46 (Fla. 3d DCA 2012) (noting:
“Absent a record that conclusively refutes the allegations in the affidavit, or
a finding that the newly-discovered evidence is inherently incredible, an
evidentiary hearing generally will be required to resolve claims of newly-
discovered evidence, especially when resolution of those claims necessarily
requires the trial court to make credibility determinations”) (citing McLin v.
State,
827 So. 2d 948, 955–57 (Fla. 2002); Jones v. State,
591 So. 2d 911,
916 (Fla. 1991)). At the evidentiary hearing, the burden was on Delhall to
3
establish that the newly discovered evidence was of such nature that “it
would probably produce an acquittal on retrial.” Jones v. State,
709 So. 2d
512, 526 (Fla. 1998).
Following the evidentiary hearing, the trial court issued a thorough and
well-reasoned sixteen-page order in which it considered and analyzed the
admissible newly discovered evidence, evaluated the weight of both the
newly discovered evidence and the evidence that had been introduced at
trial, and determined Delhall failed to establish a reasonable probability that
this newly discovered evidence would probably produce an acquittal at a new
trial.
We review the trial court’s “findings on questions of fact, the credibility
of witnesses, and the weight of the evidence for competent substantial
evidence.” Marek v. State,
14 So. 3d 985, 990 (Fla. 2009) (citing Green
v. State,
975 So. 2d 1090, 1100 (Fla. 2008)). See also Porter v. State,
788
So. 2d 917, 923 (Fla. 2001) (reaffirming: “So long as its decisions are
supported by competent, substantial evidence, this Court will not substitute
its judgment for that of the trial court on questions of fact and, likewise, on
the credibility of the witnesses and the weight to be given to the evidence by
the trial court. We recognize and honor the trial court's superior vantage point
in assessing the credibility of witnesses and in making findings of fact.”)
4
(Internal citations omitted). There is competent substantial evidence to
support the trial court’s findings and its ultimate conclusion that there is not
a reasonable probability of an acquittal on retrial upon this claimed newly
discovered evidence.
Affirmed.
5
