Rivera v. State

• Decision Date: 21 February 2003
• Docket Number: No. 2D02-4829.,2D02-4829.
• Citation: 837 So.2d 613
• Parties: Luis RIVERA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

837 So.2d 613

Luis RIVERA, Appellant, v. STATE of Florida, Appellee.

No. 2D02-4829.

District Court of Appeal of Florida, Second District.

February 21, 2003.

SILBERMAN, Judge.

Luis Rivera appeals the summary denial of his motion for postconviction relief. We affirm without comment the trial court's denial of relief as to the issues referred to in its order as grounds one through six on the basis that they were time-barred and legally insufficient. Concerning the seventh ground, we affirm without prejudice to Rivera's filing a legally sufficient motion.

The trial court correctly determined that Rivera's seventh ground was based on conclusory statements that did not warrant relief. "[I]n order to provide relief, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial." Jones v. State, 591 So.2d 911, 915 (Fla.1991); Robinson v. State, 770 So.2d 1167, 1170 (Fla.2000). Relief is not warranted when the allegations are based on "tenuous speculation." Davis v. State, 736 So.2d 1156, 1159 (Fla. 1999). Our decision is without prejudice to Rivera's filing a facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850 based on newly discovered evidence within sixty days of the issuance of our mandate. Should he do so, the trial court must determine whether the evidence qualifies as newly discovered evidence and, if so, whether it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998).

Affirmed.

DAVIS and CANADY, JJ., Concur.