KEO NOTTAGE vs STATE OF FLORIDA

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT KEO NOTTAGE, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D21-3238 [October 26, 2022] Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Scott Suskauer, Judge; L.T. Case No. 50-1997-CF-007324-AXXX-MB. Richard F. Della Fera of Richard F. Della Fera, P.A., Fort Lauderdale, for appellant. Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee. ON MOTION FOR CLARIFICATION PER CURIAM. We grant Appellant Keo Nottage’s motion for clarification, withdraw our opinion dated August 11, 2022, and issue the following opinion in its place. Appellant appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief based on newly discovered evidence. Appellant’s alleged newly discovered evidence was a co-defendant’s affidavit recanting the co-defendant’s prior trial testimony. In contrast to his trial testimony, the co-defendant’s affidavit stated that Appellant did not participate in the crime for which Appellant was convicted. The trial court granted an evidentiary hearing based on the affidavit, but before the hearing could take place, the co-defendant withdrew his affidavit. Due to the withdrawal, the trial court denied Appellant’s postconviction motion. Rule 3.850(c) states that, “[f]or all other newly discovered evidence claims, the defendant shall attach an affidavit from any person whose testimony is necessary to factually support the defendant’s claim for relief.” Fla. R. Crim. P. 3.850(c). Because the co-defendant withdrew his affidavit, Appellant’s postconviction motion was legally insufficient. Accordingly, we find no error in the trial court’s dismissal. Affirmed. KLINGENSMITH, C.J., GERBER and FORST, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 2

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