"We are very fortunate to have hired such a wonderful team!!" by A.K., Past Client
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"Don Pumphrey is amazing and gets the job done right!! I would highly recommend him to anyone. " by Amanda, Past Client
"Mr. Pumphrey rescued my family in a time of crisis. A simple traffic stop turned into out-of-state incarceration for my adult son. Our family has zero experience with needing legal counsel. We were referred to Mr. Pumphrey by another lawyer based on his reputation. Mr Pumphrey was knowledgeable about the out-of-state circumstances and educated us on the complexities of the situation. He and his staff answered and/or returned every phone call promptly. They were able to resolve this in a week’s time. The charges were dropped and my son was released. Mr. Pumphrey will always have my eternal gratitude. His knowledge, actions, and ability to resolve this quickly saved my son." by Amy C., Past Client
"If your college kid makes a mistake this is the attorney you need" by Anonymous (AVVO Review), Parent of Past Client
"I couldn't have asked for a better law firm!" by Anonymous (Google Review 2), Past Client
"Would recommend if looking for a law firm that is committed to every case and personal circumstance" by Cameron J., Past Client
"Best criminal attorney in Florida" by Elizabeth R., Past Client
"[Don] is honest, truthful and the person you want in your corner." by J. Williams, Past Client
"I highly recommend them for your legal needs." by Jane S., Past Client
"I was referred to Mr. Pumphrey’s law firm through a mutual friend who spoke highly of him. At no surprise, he came through for me in a huge way. He was effective and efficient. If you are in need of a top notch lawyer that gets the job done, Don Pumphrey is who you need!" by Jonathan C., Past Client
"They were there for me every step of the way and I never felt like just another case to them." by Lauren J., Past Client
" He's a great person and cares very much about his clients." by M.G., Past Client
"One of the finest criminal attorney's in the big bend area" by Terry B., Past Client
""Best Lawyer in Town"" by Yohan Lange, Former Client
Post-Conviction Motions for Newly Discovered Evidence
For purposes of seeking post-conviction relief in a criminal case, “newly discovered evidence” is defined as evidence that existed at the time of a trial but that could not have been discovered with reasonable diligence prior to the trial’s completion.
The petition for post-conviction relief based on newly discovered evidence must show:
the evidence was discovered after trial;
the failure to learn of the evidence was not caused by lack of diligence;
the new evidence is not merely impeaching or cumulative;
the new evidence is material to the principal issues involved; and
the new evidence would probably produce an acquittal if a new trial were granted
The attorneys at Pumphrey Law are experienced in filing motions for a new trial based on claims of newly discovered evidence after a criminal conviction in Tallahassee, Leon County and throughout the State of Florida.
Call (850) 681-7777 to discuss your case.
Prevailing on a Claim for Newly Discovered Evidence
To prevail in a claim to set aside a conviction based on newly discovered evidence, the defendant must satisfy a two-prong test.
First, in order to be considered newly discovered, the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.”
Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. To reach this conclusion the trial court is required to “consider all newly discovered evidence which would be admissible” at trial and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.”
In considering the second prong, the trial court should initially consider whether the evidence would have been admissible at trial or whether there would have been any evidentiary bars to its admissibility. Once this is determined, an evaluation of the weight to be accorded the evidence includes whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence.
Jones v. State, 709 So.2d 512, 521 (Fla. 1998) (citations omitted) (quoting Torres–Arboleda v. Dugger, 636 So.2d 1321, 1324–25 (Fla. 1994); Jones v. State, 591 So.2d 911, 916 (Fla. 1991)).
When reviewing the trial court’s decision on a newly discovered evidence claim following an evidentiary hearing, where the court’s findings are supported by competent, substantial evidence, the Appellate Court will not substitute its judgment for that of the trial court on questions of fact, credibility of the witnesses, or the weight given to the evidence by the trial court. Id. at 532.
Time Limits for Claims of Newly Discovered Evidence
Florida Rule of Criminal Procedure 3.850(b) provides, in pertinent part:
(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final unless it alleges that:
(1) 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, 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….
The exception set forth in subsection (b)(1) extends the two-year time period to file a motion under rule 3.850. Harris v. State, 192 So.3d 685, 687 (Fla. 5th DCA 2016).
Therefore, if a petitioner files the Rule 3.850 motion within two years from the time that the motion alleges that the new facts were discovered, then the trial court must address whether the motion fell within the exception under rule 3.850(b)(1).
This article was last updated on Friday, March 25, 2017.
Attorney Don Pumphrey, Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney. Don has achieved over 100 not guilty verdicts at trial and over 2,000 dismissals.