DAVID CURTIS SMITH vs STATE OF FLORIDA
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` IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED DAVID CURTIS SMITH, Appellant, v. Case No. 5D19-101 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed November 15, 2019 3.850 Appeal from the Circuit Court for Marion County, R. Gregg Jerald, Judge. Susanne K. Sichta and Rick A. Sichta, of The Sichta Firm, LLC, Jacksonville, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee. WALLIS, J., Appellant appeals the trial court's order summarily denying his successive Florida Rule of Criminal Procedure 3.850 Motion for Postconviction Relief. Appellant's motion was based on newly discovered evidence of juror misconduct that came to light fifteen years after he was found guilty and convicted of sexual battery upon a person under twelve, kidnapping of a child under thirteen with aggravated child abuse and/or sexual battery, attempted first-degree murder, and aggravated child abuse. Specifically, Appellant's ground of newly discovered evidence claims a juror concealed during voir dire that she had been the victim of sexual crimes as a child despite being questioned on that topic. The evidence of the concealment was revealed on September 2, 2017, when a local newspaper published a Letter to the Editor purportedly written by the same juror, which may have contradicted her answers to voir dire questions. We find that the Appellant's claims are both facially valid and not conclusively refuted by the record. See Peede v. State, 748 So. 2d 253, 259 (Fla. 1999). Therefore, we remand this case for the trial court to hold an evidentiary hearing. See James v. State, 717 So. 2d 1086, 1086 (Fla. 5th DCA 1998). REVERSED and REMANDED with Instructions. EISNAUGLE, J., and JACOBUS, B.W., Senior Judge, concur. 2
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