Nordelo v. State

• Decision Date: 07 June 2012
• Docket Number: No. SC11–23.,SC11–23.
• Citation: 93 So.3d 178
• Parties: Marco NORDELO, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

93 So.3d 178

Marco NORDELO, Petitioner,

v.STATE of Florida, Respondent.

No. SC11–23.

Supreme Court of Florida.

June 7, 2012.

Gary L. Sasso, Adam S. Tanenbaum and Allison L. Kirkwood of Carlton Fields, P.A., Tampa, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, Florida and Nicholas A. Merlin and Richard L. Polin, Assistant Attorneys General, Miami, FL, for Respondent.

LABARGA, J.

We have for review the decision of the Third District Court of Appeal in Nordelo v. State, 47 So.3d 854 (Fla. 3d DCA 2010), on the ground that it misapplies our precedent concerning summary denial of an evidentiary hearing in postconviction proceedings under Florida Rule of Criminal Procedure 3.850. We have jurisdiction under article V, § 3(b)(3), of the Florida Constitution. See Jaimes v. State, 51 So.3d 445, 446 (Fla.2010) (identifying misapplication of decisions as a basis for express and direct conflict jurisdiction under article V, § 3(b)(3), Fla. Const.). As explained below, we conclude that the district court misapplied our precedent and in so doing erred in affirming the summary denial of Nordelo's successive motion for postconviction relief based on newly discovered evidence. Accordingly, we quash the decision below and remand for an evidentiary hearing on the newly discovered evidence claim involving only the affidavit of codefendant Angel Lopez.

FACTS AND PROCEDURAL HISTORY

The decision of the district court which is now before the Court sets forth the basic facts pertinent to this case as follows:

Nineteen years ago, a jury found Marco Nordelo guilty of armed robbery of a convenience store and sentenced him to life in prison as a habitually violent offender. Before Nordelo's trial began, his codefendant entered a plea of no contest and was sentenced to twenty-five years in state prison.

Two years ago, Nordelo filed a Motion for New Trial Based on Newly Discovered Evidence and Prosecutorial Misconduct Pursuant to Rule 3.850. Attached to the motion was an affidavit from Nordelo's codefendant, a nineteen-time convicted felon, alleging that Nordelo had not participated in the robbery and naming a different co-perpetrator. The codefendant claimed that he did not come forward with this information sooner because he was afraid that the State would take away his plea offer.

Nordelo, 47 So.3d at 856.¹ The postconviction motion for new trial alleged two claims. First, based on the Lopez affidavit, Nordelo alleged that a new trial is required based on newly discovered evidence that he was not involved in the crime. Second, he alleged that the prosecutor knowingly presented false or misleading evidence that Nordelo was driving a white car when he was arrested the day after the robbery although the prosecutor knew at the time that the white car seen during the robbery and the white car Nordelo was driving were not the same car.²

The sworn affidavit of codefendant Angel Lopez, which was the basis of the postconviction motion for new trial, states:

AFFIDAVIT OF ANGEL LOPEZ

I, Angel Lopez, do swear under penalty of perjury, that the following statements are true and correct:

I was involved in the armed robbery of the Circle–K convenience store on May 29, 1990, at approximately 6:45 am, located at 595 SE Okeechobee Road. I entered this convenience store with an accomplice named Jose Sanchez, not Mr. Marco Nordelo.

Mr. Nordelo was not present at the time of the robbery, and was not involved in any way.

I was then involved in the Grand Theft of a Ford Taurus on the next day, May 30, 1990. I was driving this stolen car when I came into contact with Mr. Nordelo.

Mr. Nordelo was the passenger in this car when we were both arrested on May 31, 1990. Any items from the robbery that were in the car were placed there by me.

I did not come forward with this information sooner, as I was afraid that the Office of the State Attorney would take away my plea offer. I took the plea and then refused to testify. I was ignorant of the law and was afraid that if I had not cooperated with the State Attorney, then my plea would have been refused.

Marco Nordelo was mis-identified by Mr. Benavides, the victim in the robbery. He should have never been convicted because he is innocent of this crime.

I feel it is now time to come forward with the truth.

The circuit court held a hearing to determine if an evidentiary hearing would be required on the motion. After hearing argument of counsel, the circuit court denied the evidentiary hearing and issued an order summarily denying postconviction relief, concluding that the evidence was not newly discovered in that it could have been obtained earlier by due diligence and that the claim of prosecutorial misconduct was barred as successive. The order further directed the clerk “to attach all necessary record excerpts from the court file that support the Court's ruling in this matter,” although the record in this case shows no attachments to the order.

Nordelo took a timely appeal to the Third District Court of Appeal. On appeal, although the majority concluded that the motion was “legally insufficient,” 47 So.2d at 858, it also concurred with the postconviction court on its factual conclusions. The district court stated:

The codefendant's affidavit cannot be deemed newly discovered evidence because it was either known to or easily discoverable by Nordelo and his counsel: the court allowed them both to speak with the codefendant after his plea was accepted and before Nordelo's trial began. Put in the context of due diligence, if Nordelo had believed that he was innocent, then he would have had a reasonable basis for believing that his codefendant would provide exculpatory testimony and would have sought to elicit such testimony. Indeed, the record is clear that neither side called the codefendant as a witness. ... Nordelo failed to allege in his motion that he ever, in seventeen years, asked his codefendant to testify.

The codefendant now claims in his affidavit that the reason he did not come forward with this information sooner is because he “was afraid that the Office of the State Attorney would take away [his] plea offer.” This is nonsensical: as the court had already accepted his plea, which required him neither to testify for the State nor to refrain from testifying for Nordelo, he could have come forward with this supposed information at any time, and the State would have had no discretion or authority to withdraw the plea offer or vacate the plea. Furthermore, the codefendant does not state in his affidavit, nor does Nordelo allege, that he was coerced or threatened by anyone, including the State.

....

In order for an appellate court “[t]o uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla.1999) (citing Fla. R.Crim. P. 3.850(d)). Nordelo's claims are both. First, his claim that his codefendant's affidavit is newly discovered evidence is invalid on its face: as explained above, the affidavit provides no information that neither Nordelo nor his counsel could have discovered at the time of trial through the exercise of due diligence. Second, his claim is conclusively refuted by the record: the State presented overwhelming evidence of Nordelo's guilt during the trial, including the victim's identification of both defendants from photo lineups with one hundred percent certainty. Furthermore, under Taylor v. State, 877 So.2d 842, 843 (Fla. 3d DCA 2004), “the trial court could properly reject the affidavit, for it is ‘inherently incredible’ ”: therein, the codefendant claims he was the driver of the white car, while the record shows that the arresting officer testified—and Nordelo never disputed—that Nordelo was driving at the time of his arrest.

We agree that this alleged evidence cannot meet the first prong of the newly discovered evidence test. We therefore affirm the trial court's summary denial of the newly discovered evidence claim. We find that the record shows conclusively that Nordelo is entitled to no postconviction relief, and we affirm the trial court's order.

Affirmed.

Nordelo, 47 So.3d at 856–58.

Judge Cope dissented in Nordelo, concluding that the motion was in fact sufficient to require an evidentiary hearing, and opined that where the new evidence suggests that the defendant is actually innocent, the court should err on the side of granting a hearing. Id. at 858 (Cope, J., dissenting). Citing this Court's decision in Davis v. State, 26 So.3d 519, 526 (Fla.2009), Judge Cope further noted:

The Davis court explained that there is an important distinction between the requirements (a) to plead the existence of newly discovered evidence, versus (b) the heightened requirements to establish due diligence during an evidentiary hearing. The pleading requirement is lower; the proof requirement is higher. The Davis Court said:

The postconviction trial court appears to have incorrectly applied the heightened requirements to establish due diligence during an evidentiary hearing to evaluate the allegations at a pleading stage. However, permitting a newly discovered evidence claim to proceed to an evidentiary hearing does not establish that the recanted testimony qualifies as newly discovered evidence as a matter of law. See Swafford, 679 So.2d at 739. The newly discovered evidence claim remains to be factually tested in an evidentiary hearing to determine whether the defendant has demonstrated that the successive motion has been filed within the time limit for when the statement was or could have been discovered through the exercise of due diligence. See id. The motion here was sufficiently pled to allow the opportunity to prove through the testimony of witnesses that the threshold requirement of due diligence was satisfied. Accordingly, the postconviction trial court erred in summarily denying this claim on the basis that the pleading...