Third District Court of Appeal
State of Florida
Opinion filed April 26, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-717
Lower Tribunal No. F15-8075
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Fabian Pickett,
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, Mavel Ruiz, Judge.
Daniel J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.
Ashley Moody, Attorney General, and Katryna Santa Cruz, Assistant
Attorney General, for appellee.
Before LOGUE, SCALES and HENDON, JJ.
SCALES, J.
Fabian Pickett appeals the trial court’s summary denial of his Florida
Rule of Criminal Procedure 3.850 motion. Pickett’s post-conviction motion
alleged that Pickett is entitled to a new trial based both on newly discovered
evidence and on six bases of ineffective assistance of trial counsel. Pickett
was convicted of attempted second-degree murder after firing multiple gun
shots toward the victim. At trial, Pickett’s defense was that he fired his gun
toward the victim in preemptive self-defense, believing (though erroneously)
that the victim might have a gun. The trial court sentenced Pickett to twenty
years in prison, applying a minimum mandatory sentence. On plenary
appeal, this Court upheld Pickett’s conviction and sentence. Pickett v. State,
254 So. 3d 1162 (Fla. 3d DCA 2018).
About four years after sentencing, the victim signed an affidavit in
which the victim recanted his trial testimony, and stated that, contrary to his
testimony (and the testimony of several other witnesses), the victim indeed
was carrying a gun. In its detailed, eight-page, well-reasoned order, the trial
court concluded that, even if the assertions in the victim’s affidavit were true,
the outcome of the trial would have been no different because, at trial, Pickett
testified that he did not see the victim holding any weapon.
We, therefore, agree with the trial court that the victim’s recantation is
immaterial to Pickett’s guilty verdict. See Stephens v. State,
829 So. 2d 945,
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945-46 (Fla. 1st DCA 2002) (recognizing that (i) recantation evidence is a
type of newly discovered evidence that “must be such that it would probably
produce an acquittal on retrial,” and (ii) “an evidentiary hearing in the context
of recantations” is not required where the recantation affidavit is immaterial
to the verdict).
As to Pickett’s assertion that he was the victim of ineffective assistance
of trial counsel, we agree with the trial court that none of Pickett’s asserted
grounds meets the standards of Strickland v. Washington,
466 U.S. 687
(1984).
Affirmed.
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