I *

vs I

No. 85,682

PER CUIUAM.

Roy Clifton Swafford appeals an order

under Florida Rulc of Criminal Procedure

3.850. We have jurisdiction. Art. V, 5

3(b)(l), Fla, Const.

Swafford was convicted of first-degree

Swafford v. State, 533 So. 2d 270 (Fla. 1988),

cert. denied, 489 U.S. 1 100, 109 S. Ct. 1578,

103 L. Ed. 2d 944 (1 989).

filed a motion for postconviction rcliel'

pursuant to Florida Rule of Criminal

Brady' claim which alleged in part that thc

various suspects including thc suspcct Janies

evidcncc allcgedly withhcld by the State

thc rnurdcr of Brcnda Ruckcr. Lcstz

recounted certain stalenicnts and activities OC

Walsh's status as a potential suspcct in the

Also alleged to be in the police reports

Bradyv. Maryland, 373 US. 83, 83 S.

Ct. 1 194, 10 L. Ed. 2d 2 15 (1 963).

committing thrcc nzurdcrs whilc in Florida and

that one of the three victims was a white

Walsh had on occasion picked him up or

dropped him off in this same area. Lestz also

Beach area at b a.m. on the day or Ruckcr's

wcnt. When questioned by investigators, Levi

indicated that it was Lestr: and Walsh who lcft

Walsh became nervous and upsct and rcfused

to divulge to investigators his whcrcabouts on

February 14 and 15, 1982.

known to carry a .38 caliber handgun, thc

same typc of weapon used in the Rucker

residence, they found various types of .38

caliber ammunition. Several types of .38

caliber ammunition wcre removed from

on Rucker's body were cigarctte burns similar

Swafford's motion. With rcgard to the

detailed accounting to thc defense of

all police investigatory work on a case.

Moorc v. Illinois, 408 U.S. 786, 92 S.

Ct. 2562, 33 L. Ed. 2d 706 (1972).

was admissible or prejudicial. . . .

prcsentcd at trial. The court finds that

have changed. Duest v. Dumer, 555

So. 2d 849 (Fla. 1990).

Swafford's petition for a writ of habcas corpus.

Swafford y. D w , 569 So. 2d 1264 (Fla.

1990). With regard to Swafford's Brady

the state withheld. . . . Swafford has

shown no error in thc court's ruling,

Swafford, 569 So. 2d at 1267

As further proof that Walsh rcscmblcd Aftcr this Court rendered its decision, the

the composite, Swarford alleged in his 3.850 Eleventh Circuit granted Swafford a stay of

record of an anonymous call indicating that Circuit was held in abeyance while he

someone matching the composite was seen at continued to seek relief in the statc courts. In

a lounge which Lestz told investigators he and May 1991, Swafford filed a second habcas

Swafford v. Singletary, 584 So. 2d 5 (Fla.

1991). He then filed a second 3.850 motion in

November 199 1. In addition to appealing its

appeal was bascd on new information he

obtained regarding the status of Swafford's

sheriff and allegcd cx park communications

granted the motion to relinquish jurisdiction so

relief and we affirmed. Swafford v. State, 636

So. 2d 1309 (Fla. 1994).

disclose in violation of Brady. The affidavit

1. My name is Michacl Eugene Lestz

and J live in the state of Illinois. In

1982 I was in Daytona Beach, Florida

during the Daytona 500. The Daytona

500 Auto Race took place on Sunday,

2. While I was there, I was in the

occasions and without tclling rnc

3. I remember, on the day of thc

Daytona 500, Michael Walsh had two

38 caliber handguns and was in a big

hurry to get rid of them. One of these

38's was a hammerless revolver, He

used and he had to get rid of them.

Walsh started going to different bars in

order to get rid of the guns. One of

the places Walsh went to get rid of

Toplcss bar. The threc of us had been

werc all very familiar with it. Also

4. A couple of days after the

Daytona 500 and aftcr Michael Walsh

wcrc in thc parking lot of a storc and

upset and began to snatch the

pamphlets off thc cars saying they

5. Two sheriff's officers from the

Volusia County Sheriffs deparlment

came to interview me when I was in

I gave them detailed, truthful

statements of what I could remember

at that time. At some point at a later

date 1 remembered some morc details

and J wrotc thcrn back to cxplain thc

dctails to them. Thcy wrotc rnc back

and told MC to "not wony about it."

6. Bccausc I was with Michael

Walsh berore and after the incident, I

kncw how he was acting and I think

there is a good chancc that he

committed the murder of Brenda

On the basis of this affidavit, Swafford

court summarily denied the motion without an

is now before us for revicw.

as we recognized in Swafford's first motion for

Swafford, 569 So. 2d at 1267, The

places Walsh at thc Shingle Shack with a .3X

caliber handgun at or near the tirnc that thc

is newly discovered evidencc because despite

obtained his address in April 1994. According

or information sufficient to determinc his

We find this cvidcncc. whcn vicwcd in

Swafford's prior 3.850 motion and the

original trial with rcgard to exactly whcre

of whether the statemcnt is of such a naturc

that it would probably producc an acquittal on

rctrial. See Jones v. State, 591 So. 2d 911

Wc accept as sufficient for the purpose of

demonstrating that an cvidcntiary hearing is

cvidcnce. Our acceptance is based in part on

the Statc's failurc to assert, with regard to this

issue, anything more than an allegation that

defensc counsel had years to find Lestz.

We specifically hold, howcvcr, that our

discovered evidence as a matter of law.

claini remains to be factually tcstcd at the

within two ycars of thc time whcn Lcstz's

thc exercise of due diligence. See Bolender v,

-7 Statc 658 So. 2d 82 (Fla.), ccrt. denied, 116

wastcpaper basket in the women's room.

S. Ct, 12, 132 L. ed. 2d 896 (1995). If the

Swafford's first rulc 3.850 motion and the

probably produced an acquittal.

in this case be expedited, The trial court is

KOGAN, C.J., and OVERTON, SHAW and

GRIMES, J J., concur.

HARDING, J., concurs specially with an

opinion, in which KOGAN, C.J., and SHAW

and ANSTEAD, JJ., concur.

ANSTEAD, J., concurs spccially with an

opinion, in which KOGAN, C.J., and SHAW,

J., concur.

WELLS, J,, concurs in part and dissents in

part with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO

FILE REHEARING MOTION AND, IF

FILED, DETERMINED.

HARDING, J., specially concurring.

I concur with the majority opinion and

write separately only to commcnt on the issue

of finality raised by Justice Wells in his opinion

Justice Wells is correct in his cxprcsscd

concern regarding thc imporlance of finality in

legal proceedings. The doctrine of finality is a

necessary and strong thread that runs through

the fabric of our judicial system. Without

finality, the affairs of a frcc society and the

rights of its citizens would be severely

jeopardized. Thus, I believe that the doctrine

of finality should be given grcat dcfcrencc and

should be an important consideration in

reopened or overturned,

However, in rccognition of the "qualitative

difference of death from all other

and affords a correspondingly greater degree

L Ranios, 463 U.S. 992, 998-999, 103 S. Ct.

3446,77 L. Ed. 2d 1 17 1 (1 983); see also Ford

v. Wainwrivht, 477 US. 399,411, 106 S. Ct.

2595, 91 L. Ed. 2d 335 (1986) (Marshall, J.,

decisions are subject to error, somc individuals

unfathomable ofpenalties." Ford, 477 US. at

41 1 (Marshall, J., plurality opinion).

as a basis to attack a judgment [may be]

inherently inconsistent with the concept of

in part at 18, it is an inconsistency that

circumstances. Where a defendant presents

of the court" and "could not with reasonable

at trial," hc or shc is cntitled to a new trial.

Fla. R. Crim. P. 3.600(a)(3). Clearly a

dekndant is only entitled to a new trial where

the requircnicnts of rulc 3,60O(a)(3) are

satisfied. However, I would not permit the

doctrine of finality to trump the opportunity oC

parties must adhcre strictly to the time period

grantcd. Wc havc cvcn dircctcd a circuit judgc

death penalty was imposcd. Congrcss has also

Justice Wells states that "capital attcnipted to resolve lengthy delays in the

defendants spend an incessant anzount of time postconviction process by imposing a one-year

on death row without a final adjudication of limitation on the time in which a prisoner may

their cascs.'' Opinion concurring in part, seek kderal habeas corpus relief. &

dissenting in pad at 18-19. In an effort "[tlo Antiterrorism and Effcctivc Death Penalty Act

in a morc orderly manner'' and thcrcby shorten Stat. 1214, 1217 (to bc codificd at 28 U.S.C.

assure that death penalty proceedings proceed of 1996, Pub. L. NO. 104-132, 101, 110

delays in the dcath penalty postconviction 8 2244(d)).

- See In re Rule Crirn inal Procedure 3.85 1,626

So. 2d 198, 198 (Fla. 1993); Fla. R. Crirn. P.

3.85 1 (b).' When this Court grants extensions

by the trial court, by the party, or by counsel at

defendant or his counsel could not have known

them by the use of diligence."' Joncs v. State,

591 So. 2d 911, 916 (Fla. 1991) (quoting

Hallman v. State, 371 So. 2d 482, 485 (Fla.

Even with such limits, I recognize that the

cases. However, neither public perception nor

the reality of a lengthy postconviction proccss

justifies foreclosing meritorious claims of

KOGAN, C.J., and SHAW and ANSTEAD,

ANSTEAD, J., specially concurring.

1979)). 1 concur in the separate opinion of Justice

' The commentary to Florida Rulc of

Criminal Procedurc 3.85 1 provides that thc

proceedings and grounds for postconviction

Florida Rule of Criminal Procedure 3.850,

present newly discovered evidence in

accordance with [recent decisions of this

Court]." Fla. R. Crini. P. 3.851 (commcntary)

Harding. I also concur in the remand for an

evidentiary hearing on the &g& claim and thc

allegations of newly discovercd cvidcncc on

this issuc. All of Swafford's previous petitions

(citations omittcd). Thus, even in attcmpting

Court recognized the inipottance ofa claim of

information was prcviously disclosed to the

submitted on this issue, merits a full

evidentiary hearing in which this mattcr can be

fairly considered and resolvcd. See Kyles v,

Whitlcy, 115 S. Ct. 1555, 131 L. Ed. 2d 490

(1995); Scott v. State, 657 So. 2d 1129 (Fla.

What remains is Tor an evidentiary hearing to

merit to thc claims presented.

ROGAN, C.J., and SHAW, J., concur.

WELLS, J., concurring in part and dissenting

If the trial court's summary denial of

Swafford's 3.850 motion must bc rcvcrsed and

remanded for an evidentiary hearing, I agree

evidence should bc determined by thc trial

court. Whcn this Court orders an cvidentiary

cvidence in an affidavit, our decision should bc

dctemination of whether the arfidavit contains

the trial court. This is especially truc in

his counsel in 1990 and upon which Swafford

address and phonc number of Lestz's brother.

located through his brothcr. Clcarly, if an

court should bc pcrmittcd to question

rnakc its own determination on thc issuc based

upon the evidencc prcscntcd.

I do not agrcc, however, that an

with the views I expressed in my dissent in

Robcrts v. State, 21 Fla. L. Weekly S245 (Fla.

June 6, 1996), 1 find that as a threshold

bears thc burdcn of cstablishing a prima lack

discovered evidence. To mcct this burden,

in Lcstz's affidavit was unknown to hini or his

attorney at the time of trial and could not have

diligence, Fla. R. Crirn. P. 3.850(b); see also

Jones v, State, 591 So. 2d 91 1 (Fla. 1991);

Hallman v. State, 371 So. 2d 482 (Fla. 1979).

was not discovered two years prior to thc

filing of this motion. Fla. R. Crini. P. 3.850;

Adams v, Statc, 543 So. 2d 1244 (Fla. 1989).

It is my vicw that this Court should not

recognize cvidcncc that a dcfcndant claims is

threshold requircmcnt. To do othcnvise

severely erodes the concept of finality, which

this Court has expressly recognized as

fundamental to the integrity of our judicial

system. In our judicial system, the trial has

the Latin derivative for the word "verdict" is

to do by their vcrdict is speak the truth of the

case. In Witt v. State, 387 So. 2d 922 (Fla.),

cert. denied, 449 U.S. 1067, 101 S. Ct. 796,

66 L. Ed. 2d 612 (1980), this Court stated:

The importance of finality in any

It has long been recognized that, for

somc point, come to an cnd. In temis

of the availability ofjudicial rcsources,

review of other cases. There is no

is just. Moreover, an abscncc of

nor society as a whole

at 925. The Court in further added

to undcrmine confidence in the integrity of our

u m i z i o , 442 US. 178, 184 n.13, 99 S . Ct.

2235,2240 n.l1,60 L. Ed. 2d 805 (1979)).

basis to attack a judgment is inherently

which this Court clearly has acknowledged

to dctcrminc whcthcr evidcnce is actually

finality, As a result, trials become but one

incidcntal stcp along a path of evcr changing

facts, and capital dcfcndants spend an

without a final adjudication of their cases,* To

prcvcnt the continued decimation of finality,

this Court should adherc to a narrow

construction of what is ncwly discovered

evidencc for purposes ofa 3.850 motion. The

evidence follows from this Court's decision in

Jones v. State, 591 So, 2d 91 1 (Fla. 1991). In

So. 2d 482 (Fla. 1 979),9 and adoptcd the same

* I take noticc of Florida Dcpartmcnt of

Corrections' material which statcs that

prisoncrs who have been sentenced to death

are rnaintaincd in a six- by nine-foot ccll with

a ceiling nine and one-half feet high. f&

Florida Department of Corrcctions, &I

Information Services Fact Shcet (June 1994).

for two-hour intervals twicc a wcck.

except for medical reasons, legal or nzedia

from 9 a.m. to 3 p.m. on weekends only).

must be of such a nature that, if known at trial,

probability test that is set forth in Florida Rule

of Criminal Procedurc 3.600(a)(3)." As a

is alleged to bc "new1 y discovered evidencc."'

I conclude that Swafford failed to meet the

evidence because hc did not make a prima

his defense counsel was unable to find Lestz

through the use of due diligence prior to his

first 3.850 motion because the niaterial

disclosed by the State pursuant to chaptcr 1 19,

nothing panned out." Swafford also asscrts

that counsel's attempts to locate Lesk through

relief who, othcr than credit companies and

contactcd anyonc that had information as to

Lestz. Nor did he explain why Lestz could not

ofjudgment, 371 So. 2d at 485.

lo Florida Rule of Criminal Procedure

3.600(a)(3) providcs that new and material

is "newly discovercd evidence" is that stalc

evidence is given equal weight to cvidence

presented at the original trial. The evidence

Justice Rehnquist was correct to observe that

"the passage oi' time only diminishes the

reliability of criminal adjudications." Herrera

v. Collins, 506 US. 390,403, 113 S. Ct. 853,

862, 122 L. Ed. 2d 203 (1993).

Tracing Serviccs, Inc., was able to locate Mr.

Lestz in April of 1994. He does not explain,

Nor does he explain why thc method used to

locatc Lestz could not have been used at an

discovcred evidence. I would therefore affirm

thc trial court's denial ofthe motion without an

is considcred ncwly discovered evidence, it is

not of such a nature that it would probably

produce an acquittal on retrial, & Jones, 591

So. 2d at 9 15 (setting standard of revicw for

several contradictory statements lo concludc that Swafford is not cntitlcd to an

owned, including several .3 8 caliber handguns,

and how he allegedly disposed of thcrn. These

particular statements, in addition to being

or Walsh's disposal of the gun there.

An Appeal from thc Circuit Court in and for

Volusia County,

R. Michael Hutcheson, Judge - Case No.

not contain any reference to the Shingle Shack 83-3425-BB

This Court previously recognized that the

cvidence against Swafford in this case was

substantial. Crucially, thc testimony of the

couple from whom the murder weapon was

the gun canic from Nashville, Tcnncssce.

murder. Additionally, a waitress testilied that

she actually saw Swafford dispose ofa gun

inside the Shingle Shack prior to his arrest.

was at the Shingle Shack, three men positively

pointed a gun at thcrn during an alleged

near the time thc gun was stolen or at any

other time. Furthermore, a close reading of

Lestz's affidavit indicates Lestz did not say

Walsh actually disposed of a .38 caliber

handgun at the Shingle Shack. In fact, Lestz's

Lcstz saw Walsh get rid of a gun anywhere.

the murder weapon, I simply do not find a

offered by Lestz will probably lead to

Swafford's acquittal on retrial. I therefore

Martin J, McClain, Chicf Assistant CCR,

Tallahassee, F I orida,

for Appellant

Robert A. Butterworth, Attorncy Gcncral and

Gcncral. Daytona Beach, Florida,

for Appellee