TAYLOR V. STATE

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM A.D., 2004 ** GERALD TAYLOR ** Appellant, ** vs. CASE NO. 3D03-2102 ** THE STATE OF FLORIDA ** Appellee. LOWER TRIBUNAL NO. 93-15569 ** Opinion filed July 7, 2004. An Appeal under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, Rosa Rodriguez, Judge. Gerald Taylor, in proper person. Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee. Before, COPE, GERSTEN and FLETCHER, JJ. PER CURIAM. This is an appeal from an order denying a Rule 3.850 motion filed by defendant-appellant Gerald Taylor, asserting newly discovered evidence. Under the circumstances of this case, the denial was proper. Defendant s newly discovered evidence claim is based on an affidavit provided by an alleged witness to the crime, a fellow inmate. The fellow inmate offered an affidavit which states that he saw the shooting which defendant was convicted. The affidavit states that both shooters wore ski masks and that the build of defendant. the shooters did not resemble the build of the The affidavit concludes that because the description of the shooters did not match the build of the defendant, the defendant could not have committed the crime. The state properly argues, and our review of the transcript reveals, that two eyewitnesses to the crime identified defendant as one of the shooters. for years. Both eyewitnesses had known defendant Further, there was no mention by these eyewitnesses- -or any suggestion by the prosecutor, the defense, or anyone at the trial--that the shooters were wearing ski masks or masks of any type. Thus, the trial court could properly affidavit, for it is inherently incredible. reject See the McLin v. State, 827 So. 2d 948, 955 (Fla. 2002); Evans v. State, 843 So. 2d 938 (Fla. 3d DCA 2003). Affirmed. 2

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