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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

So. 2d 253, 255 (Fla.

So. 2d 253, 255 (Fla. 1998)(“We reject the State’s argument that Smith’s due process rights were not violated by the ex parte communications because he had ample opportunity to object to the substance of the proposed order.”)(emphasis added); Jones v. State, 740 So.2d 520 (Fla. 1999)(“We conclude that the twelve-year delay undisputedly not due to appellant, the lack of psychological testing contemporaneous to trial, and the State’s own evidence that a retroactive competency determination is not possible establish the inability to provide appellant a meaningful retrospective competency determination that complies with due process.”)(emphasis added). In Johnson v. Singletary, 647 So. 2d 106, 111 n. 3 (Fla. 1994), the defendant appealed the denial of his motion to vacate. This Court reversed and remanded for an evidentiary hearing on his newly discovered evidence claim. Mr. Johnson’s claim was based on four affidavits stating that another prisoner had confessed to the crime for which Mr. Johnson was convicted. This Court reversed because the circuit court had accepted evidence from the State purporting to show that the man named in the affidavits did not match the eyewitness description of the perpetrator given at the trial; however, the circuit court refused to consider evidence Mr. Johnson 58

offered to corroborate the affidavits. This Court ruled that allowing the State to present evidence regarding the unreliability of Mr. Johnson’s evidence, without providing him a reciprocal opportunity to present evidence corroborating his affidavits, violated his due process rights. This Court noted that “[u]nder these circumstances, it is difficult to see why Johnson should have been precluded from also putting on evidence.” Id. at 111 n.3. 49 In Roberts v. State, 840 So. 2d 962 (Fla. 2002), this Court explained that in Johnson and Provenzano: we determined that the postconviction defendants had been deprived of due process because they were not given an opportunity to present evidence or witnesses. * * * Thus, on remand, Roberts must be afforded an opportunity to compel Haines’ testimony at the evidentiary hearing so that the court can hear from her directly about the recantation and the 49 Justice Overton in his concurring opinion noted that Mr. Johnson must be given an opportunity to present evidence corroborating the affidavits. Justice Overton explained, “This is especially true given that the trial court allowed the State to present evidence that the affidavits were unreliable but did not afford Johnson the same evidentiary hearing opportunity.” Id. at 111. Justice Kogan concurred, stating, “[s]ince the trial court effectively had commenced an evidentiary hearing, it was obligated to grant Johnson’s request to present evidence of his own in rebuttal.” Id. at 112. See also Jones v. Butterworth, 695 So. 2d 679, 681 (Fla. 1997)(ordering the circuit court to reopen the evidentiary hearing after denying the petitioner the opportunity to present his expert witnesses); Ramirez v. State, 651 So. 2d 1164 (Fla. 1995)(reversing conviction because defendant’s due process rights were violated when he was deprived opportunity to rebut State’s scientific evidence). 59

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