William Earl Sweet v. State of Florida , 248 So. 3d 1060 ( 2018 )

Supreme Court of Florida
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No. SC17-1987
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WILLIAM EARL SWEET,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[May 24, 2018]
PER CURIAM.
William Earl Sweet appeals the postconviction court’s order denying his
sixth successive motion for postconviction relief based on a claim of newly
discovered evidence after an evidentiary hearing.1 For the reasons that follow, we
affirm the postconviction court’s order denying Sweet relief.
FACTUAL BACKGROUND
In 1991, a jury convicted Sweet of one count of first-degree murder, three
counts of attempted first-degree murder, and one count of burglary. Sweet v. State
1. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
(Sweet I), 624 So. 2d 1138, 1139 (Fla. 1993). On direct appeal, this Court
explained the details underlying Sweet’s convictions:
On June 6, 1990, Marcine Cofer was attacked in her apartment
and beaten and robbed by three men. She could identify two of the
men by their street names. On June 26, 1990, she was taken by
Detective Robinson to the police station to look at pictures to attempt
to identify the third assailant. When Robinson dropped Cofer off at
her apartment, William Sweet was standing nearby and saw her leave
the detective. Unknown to Cofer, Sweet had previously implicated
himself in the robbery by telling a friend that he had committed the
robbery or that he had ordered it done. Cofer asked her next-door
neighbor, Mattie Bryant, to allow the neighbor’s daughters, Felicia,
thirteen, and Sharon, twelve, to stay with Cofer in her apartment that
night. Mattie agreed, and the children went over to Cofer’s apartment
around 8 p.m.
At approximately 1 a.m. that evening, Sharon was watching
television in the living room of Cofer’s apartment when she heard a
loud kick on the apartment door. She reported this to Cofer, who was
sleeping in the bedroom, but because the person had apparently left,
Cofer told Sharon not to worry about it and went back to sleep.
Shortly thereafter, Sharon saw someone pulling on the living room
screen. She awakened Cofer. The two then went to the door of the
apartment, looked out the peephole, and saw Sweet standing outside.
Sweet called Cofer by name and ordered her to open the door.
At Cofer’s direction, Felicia pounded on the bathroom wall to
get Mattie’s attention in the apartment next door, and a few minutes
later Mattie came over. The four then lined up at the door, with Cofer
standing in the back of the group. When they opened the door to
leave, Sweet got his foot in the door and forced his way into the
apartment. Sweet’s face was partially covered by a pair of pants. He
first shot Cofer and then shot the other three people, killing Felicia.
Six shots were fired. Cofer, Mattie, and Sharon were shot in the
thigh, ankle and thigh, and buttock, respectively, and Felicia was shot
in the hand and in the abdomen.
Id.
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Following the jury’s recommendation for death by a vote of ten to two, the
trial court sentenced Sweet to death. Id. In imposing the death sentence, the trial
court found the following aggravating factors:
(1) Sweet had previously been convicted of several violent felonies,
including armed robbery, possession of a firearm by a convicted felon,
riot, resisting arrest with violence, and the contemporaneous
attempted murders and burglary; (2) the murder was committed to
avoid arrest; (3) the murder was committed during a burglary; and (4)
the murder was cold, calculated, and premeditated.
Id. at 1142. “The court found no statutory mitigating circumstances, but found as
nonstatutory mitigation that Sweet lacked true parental guidance as a teenager.
This mitigation was given slight weight.” Id.
On direct appeal, this Court affirmed Sweet’s convictions and sentence of
death. Id. at 1143. Sweet’s sentence of death became final in 1994. Sweet v.
Florida, 510 U.S. 1170 (1994).
Sweet’s Initial Postconviction Motion
In 1995, Sweet filed his initial motion for postconviction relief, raising
twenty-eight claims. Sweet v. State (Sweet II), 810 So. 2d 854, 857 n.4 (Fla.
2002).2 The postconviction court granted an evidentiary hearing on four of
Sweet’s claims. Id. at 858.
2. Sweet’s initial postconviction claims included:
(1) Sweet was denied access to public records; (2) the one-year time
limitation for filing a rule 3.851 motion for postconviction relief
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violate[d] Sweet’s due process and equal protection rights; (3) the
“felony murder” statutory aggravating circumstance constitute[d] an
unconstitutional “automatic statutory aggravating circumstance”; (4)
the “avoid arrest” statutory aggravator was inapplicable in this case
and the jury was erroneously instructed regarding this aggravator
because the trial court improperly failed to further instruct the jury
that the aggravator can only be found where it is the “dominant or
only” motive for the defendant’s commission of the murder; (5) the
trial court’s jury instruction on the “cold, calculated, and
premeditated” aggravator was erroneous because it failed to instruct
the jury that this aggravator required “heightened premeditation” and
the evidence failed to establish the necessary heightened
premeditation necessary to support this aggravator; (6) the
Jacksonville Sheriff’s Office destroyed all of the evidence in this case,
depriving Sweet of his right to conduct an independent analysis of this
evidence using his own experts; (7) ineffective assistance during the
guilt phase by: (a) failing to conduct an adequate pretrial investigation
and preparation of Sweet’s case; (b) failing to investigate other
possible sources who would have had a motive to kill Marcine Cofer;
and (c) failing to properly cross-examine Marcine Cofer and Solomon
Hansbury; (8) ineffective assistance by failing to investigate and
prepare available mitigation evidence regarding Sweet’s background;
(9) Sweet was denied his right to a fair trial as a result of his jury
being subjected to improper influences; (10) the jury was given
inadequate instructions on the “prior violent felony,” “great risk,”
“avoiding arrest,” and “cold, calculated, and premeditated”
aggravators; (11) Rule Regulating the Florida Bar 4-3.5(d)(4), which
prohibits attorneys from interviewing jurors, caused his
postconviction counsel to render ineffective assistance of counsel;
(12) Sweet is innocent of first-degree murder and innocent of the
death penalty; (13) the record fail[ed] to show his presence or his
counsel’s presence at five sidebar conferences and counsel rendered
ineffective assistance by failing to object; (14) improper prosecutorial
comments during the penalty phase in arguing that the jury should not
be sympathetic towards Sweet and ineffective assistance in failing to
object to this comment and in failing to request a “mercy instruction”;
(15) alleged omissions in the record on appeal deprived him of
meaningful appellate and postconviction review and trial counsel
rendered ineffective assistance in failing to ensure a complete record;
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At the evidentiary hearing, Sweet presented the testimony of Anthony
McNish, a witness who was subpoenaed to testify at Sweet’s trial, but did not
appear. Id. at 861. McNish’s testimony at the evidentiary hearing was
summarized by this Court as follows:
(16) the trial court’s failure to ensure that Sweet had a complete
record on appeal deprived him of a proper direct appeal; (17) Sweet
received a fundamentally unfair trial due to the sheer number and
types of errors committed; (18) the penalty phase jury instructions
improperly shifted the burden to Sweet to show that death was not the
appropriate sentence for the jury to recommend; (19) the State’s
misleading evidence and improper argument deprived Sweet of a fair
trial; (20) Sweet’s contemporaneous felonies were improperly used to
support the prior violent felony aggravator; (21) the State failed to
prove that Sweet “knowingly” created a great risk of causing the death
of other persons given that his mental state at the time of the murder
prevented him from knowing this fact; (22) the trial court improperly
used a prior possession of a firearm by a convicted felon conviction as
a statutory aggravator because the conviction was unconstitutionally
obtained; (23) Florida’s death penalty statute is unconstitutional on its
face and as applied; (24) the trial court erred in failing to consider
nonstatutory mitigating circumstances; (25) the State’s introduction of
and argument regarding nonstatutory aggravators deprived Sweet of a
fair sentencing recommendation; (26) the State’s closing argument
and the jury instructions during the penalty phase improperly
diminished the jury’s sense of responsibility in the sentencing process;
(27) trial counsel failed to provide the two court-appointed mental
health examiners with sufficient background information to allow
them to adequately evaluate Sweet’s competency to stand trial; and
(28) the mental health officials that examined Sweet failed to render
adequate mental health assistance.
Id. at 857 n.4.
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McNish stated that the three men at Cofer’s door walked differently
than Sweet, and that the three men each had a different skin
complexion and physical build than Sweet. . . .
The State established on cross-examination that McNish had
been convicted of seven felonies, including crimes involving
dishonesty. Further, although he stated at a pretrial deposition that he
could not see any of the three mens’ faces at Cofer’s door, that it was
dark, and that he had bad eyesight, he explained at the evidentiary
hearing that, after thinking about it, he had a good idea of what the
three men looked like. However, he repeated at the evidentiary
hearing that he had bad eyesight and never got a good look at the three
men. Moreover, McNish never saw any of the men wearing a mask,
and he did not actually see the men knock on the door. Finally,
McNish stated at the evidentiary hearing that he could identify one of
the men that was at Cofer’s door now, but he refused to reveal the
name of the person. He did state that the man is not Sweet.
Id. at 861-62. Also at the evidentiary hearing on his initial postconviction motion,
Sweet presented the testimony of Solomon Hansbury, a witness at Sweet’s trial
who testified “that Sweet confessed to the murder while they were in jail together.”
Id. at 867. At the evidentiary hearing, Hansbury recanted his testimony. Id.
After the evidentiary hearing, the postconviction court denied relief. Id. at
858. As to Sweet’s claim regarding trial counsel’s failure to secure McNish’s
appearance at trial, the postconviction court found that Sweet “failed to
demonstrate either deficient performance or prejudice.” Id. at 862. The
postconviction court explained that “given McNish’s inconsistent testimony at the
evidentiary hearing and complete evasiveness regarding a critical piece of newly
divulged evidence—some eight years after the fact, the jury would find McNish’s
testimony to be as incredible as this Court found it to be.” Id. Additionally, as to
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Hansbury’s recantation, the postconviction court “expressly rejected Hansbury’s
testimony at the evidentiary hearing . . . as ‘incredible.’ ” Id. at 867.
Sweet appealed the denial of postconviction relief to this Court. As to
McNish, this Court agreed with the postconviction court that “Sweet demonstrated
neither deficient performance nor prejudice with regard to McNish,” and
concluded that none of Sweet’s claims of ineffective assistance of counsel at the
guilt phase “refute[d] the overwhelming evidence of guilt presented by the State.”
Id. at 862. This Court, likewise, rejected Sweet’s cumulative evidence claim
concerning Hansbury’s recantation after “[c]onsidering all of the testimony
presented at the evidentiary hearing.” Id. at 867. This Court denied Sweet’s other
claims and unanimously affirmed the postconviction court’s denial of relief. Id. at
871.3
3. Sweet’s subsequent petition for a writ of habeas corpus filed in this Court
was also denied. Sweet v. Moore, 822 So. 2d 1269 (Fla. 2002).
Sweet filed a successive motion for postconviction relief in 2003, raising a
claim under Ring v. Arizona, 536 U.S. 584 (2002), which the postconviction court
denied as untimely and facially insufficient. This Court affirmed without opinion.
See Sweet v. State, 900 So. 2d 555 (Fla. 2004).
Sweet filed a third successive motion for postconviction relief, raising a
claim under Crawford v. Washington, 541 U.S. 36 (2004). The postconviction
court denied the claim, and this Court affirmed without opinion. Sweet v. State,
934 So. 2d 450 (Fla. 2006). Sweet’s petition for a writ of habeas corpus in federal
court was dismissed as untimely. See Sweet v. Sec’y, Dep’t of Corr., 467 F.3d
1311 (11th Cir. 2006). Sweet’s fourth and fifth successive motions for
postconviction relief were also denied; Sweet did not appeal.
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Sweet’s Sixth Successive Motion for Postconviction Relief
On January 25, 2017, Sweet filed his sixth successive motion for
postconviction relief based on newly discovered evidence.4 The newly discovered
evidence was an affidavit executed by Florida state prisoner Eric L. Wilridge, who
attested, in part:
On June 26/27, 1990 around 1:30am I was at the laundromat on 4th
Market. I was looking down the alley and saw 3 males standing at
Dales (Spot). I got on my bike and rode around the corner towards
3rd and market. I ran into Jesse and he said that he relieved [sic] that
somebody is gonna rob Dale (Marcene) cause a guy with a ski mask
made him knock on their door. About 10 minutes later I rode past
Dales (spot) down 3rd and saw a guy standing in the doorway
shooting. I couldn’t see who it was because he was wearing a ski
mask (black/gray). I know it wasn’t (William E. Sweet) because of
his build, height, and complexion (shorter and lighter). The next
morning, I heard a little girl got killed. I didn’t come forward earlier
because I didn’t want to get involved, but an innocent man is on death
row. This is what happened.
Sweet’s motion also asserted that Cofer, who testified against Sweet at trial, had
since come forward and suggested that she may have misidentified Sweet to the
4. While this case was pending, Sweet filed a seventh successive motion
seeking relief under Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied,
137 S. Ct. 2161 (2017). Sweet appealed the postconviction court’s denial of that
motion and, upon review, this Court affirmed. Sweet v. State, 234 So. 3d 646 (Fla.
2018).
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police and at trial.5 Sweet argued that, because “[i]dentification has always been a
key issue in this case,” an evidentiary hearing was warranted.
The postconviction court granted Sweet an evidentiary hearing “to develop
the factual allegations of [Sweet’s] claim” regarding Wilridge and “to present
additional evidence to support [Sweet’s] claim that Ms. Cofer recanted her
testimony for the limited purpose of demonstrating any cumulative effect the
recantation may have” on Sweet’s claim. After the one-day evidentiary hearing,
the postconviction court denied relief.
Sweet now appeals the postconviction court’s denial of relief, claiming that
the postconviction court (1) erred in admitting an arrest record, which indicated
that Wilridge was arrested five days before Sweet’s offenses; (2) erred in its
credibility determinations regarding the testimony of Cofer and Wilridge; and (3)
misapplied the Jones6 standard for newly discovered evidence. For the reasons
explained below, we affirm the postconviction court’s order denying relief.
5. In 2014, Sweet filed a successive pro se motion for postconviction relief,
in which he alleged that Cofer recanted her trial testimony and an evidentiary
hearing was warranted. This motion was stricken because Sweet was represented
at the time of the filing and his then-counsel did not adopt the motion.
6. Jones v. State, 709 So. 2d 512 (Fla. 1998).
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I. Admission of the Arrest Record
Sweet claims that the postconviction court erred in admitting an arrest
record that was introduced by the State, which showed that Wilridge was arrested
five days before the crimes at issue in this case occurred. The State sought to
admit the arrest record to show that Wilridge was likely incarcerated at the time of
the murder and thus could not have been an eyewitness to the crime. Sweet argues
that the arrest record should not have been admitted because it was not timely
disclosed to the defense and was not relevant, as it did not conclusively establish
that Wilridge was in custody at the time the crimes at issue occurred.
We conclude that the postconviction court did not err in admitting the arrest
record. Even if we were to conclude that it was error to admit the record, however,
any error would be harmless beyond a reasonable doubt. See Deparvine v. State,
995 So. 2d 351, 372 (Fla. 2008) (holding that erroneously admitted evidence was
harmless where there was “no reasonable possibility” that the evidence contributed
to the defendant’s convictions). The trial court’s determination of Wilridge’s
credibility did not rest on the admission of the arrest record, as we more fully
explain below.
Accordingly, Sweet is not entitled to relief on this claim.
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II. Credibility Determinations
“When reviewing a trial court’s determination relating to the credibility of a
recantation, this Court is ‘highly deferential’ to the trial court and will affirm the
lower court’s determination so long as it is supported by competent, substantial
evidence.” Lambrix v. State, 39 So. 3d 260, 272 (Fla. 2010) (quoting Heath v.
State, 3 So. 3d 1017, 1024 (Fla. 2009)). “Postconviction courts hold a superior
vantage point with respect to questions of fact, evidentiary weight, and
observations of the demeanor and credibility of witnesses.” Ibar v. State, 190 So.
3d 1012, 1018 (Fla. 2016). “Unlike this Court, ‘the trial judge is there and . . .
see[s] and hear[s] the witnesses presenting the conflicting testimony. The cold
record on appeal does not give appellate judges that type of perspective.’ ” Spann
v. State, 91 So. 3d 812, 816 (Fla. 2012) (quoting State v. Spaziano, 692 So. 2d 174,
178 (Fla. 1997)).
1. Cofer
Sweet claims that the postconviction court erred in finding that Cofer’s
recantation testimony was not credible. With regard to recanting testimony, this
Court has explained:
Recantation by a witness called on behalf of the prosecution does not
necessarily entitle a defendant to a new trial. In determining whether
a new trial is warranted due to recantation of a witness’s testimony, a
trial judge is to examine all the circumstances of the case, including
the testimony of the witnesses submitted on the motion for the new
trial. “Moreover, recanting testimony is exceedingly unreliable, and it
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is the duty of the court to deny a new trial where it is not satisfied that
such testimony is true. Especially is this true where the recantation
involves a confession of perjury.” Only when it appears that, on a
new trial, the witness’s testimony will change to such an extent as to
render probable a different verdict will a new trial be granted.
Consalvo v. State, 937 So. 2d 555, 561 (Fla. 2006) (citations omitted) (quoting
Armstrong v. State, 642 So. 2d 730, 735 (Fla. 1994)). If a postconviction court “is
not satisfied that the recanted testimony is true, it has a duty to deny the defendant
a new trial.” Heath, 3 So. 3d at 1024; see also Archer v. State, 934 So. 2d 1187,
1199 (Fla. 2006) (affirming denial of postconviction relief “because a recantation
which is not credible would not produce an acquittal or a life sentence on retrial”).
In this case, Cofer’s testimony regarding her blurred present memory as to
the shooter came twenty-six years after Sweet’s trial. Additionally, and
importantly, Cofer’s testimony at the evidentiary hearing cannot be considered a
true recantation, as she testified at the evidentiary hearing on cross-examination by
the State that her trial testimony was truthful. However, as the postconviction
court explained in its order denying relief, Cofer testified at the evidentiary hearing
that “she was now unsure whether [Sweet] was the person who shot her.” The
postconviction court further explained:
Ms. Cofer claimed that she had been unsure about [Sweet’s] guilt for
some time, but did not feel it was confirmed until her sister told her in
2013 that [Sweet] was innocent. Ms. Cofer also testified that shortly
after speaking with her sister, she was contacted by [Sweet’s] sister
about recanting her trial testimony. Despite now testifying that
[Sweet] was not the true perpetrator, she claimed that what she
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testified to at the time of the trial was true. Ms. Cofer did not provide
any specific details to explain how she went from being able to
concretely identify [Sweet] as the perpetrator to now questioning her
identification.
While Ms. Cofer’s testimony was credible at trial, her
testimony at the Evidentiary Hearing was not. Ms. Cofer testified that
her memory “goes in and out” and is “blurry.” She also testified that
she smokes approximately fifteen marijuana blunts a day and that she
had consumed five marijuana blunts prior to testifying at the
Evidentiary Hearing. Ms. Cofer’s demeanor at the Evidentiary
Hearing suggested that she was on friendly terms with [Sweet] and
had a vested interest in seeing [Sweet’s] conviction overturned despite
his culpability. Based on Ms. Cofer’s testimony it is clear to the
Court that with the passage of time and Ms. Cofer’s drug use, her
memory of the offenses has faded. Her fading memory was then
influenced by statements made to her by her sister and [Sweet’s] sister
that [Sweet] was not the true perpetrator.
We conclude that this finding is supported by competent, substantial evidence.
Accordingly, Sweet is not entitled to relief on this claim.
2. Wilridge
Sweet next argues that the postconviction court erred in finding that
Wilridge was not credible. Like the delay in Cofer’s recantation, Wilridge did not
come forward for more than twenty-four years after the offenses. See Jones, 709
So. 2d at 521-22 (“Where . . . some of the newly discovered evidence includes the
testimony of individuals who claim to be witnesses to events that occurred at the
time of the crime, the trial court may consider both the length of the delay and the
reason the witness failed to come forward sooner.”). Additionally, Wilridge is a
seven-time convicted felon, who is currently serving a life sentence for which he
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has been incarcerated since October 26, 1991. See Clark v. State, 35 So. 3d 880,
893 (Fla. 2010) (affirming the denial of postconviction relief where the newly
discovered evidence came from an inmate serving multiple sentences, noting that
the inmate “would probably not serve as a credible witness at a new trial”).
Further, as the postconviction court explained in its order denying relief:
Mr. Wilridge’s explanation for why he waited over twenty-four years
to come forward with this possibly exonerative information was that
he did not want to become involved with law enforcement. Mr.
Wilridge claimed that his guilty conscious [sic], caused by knowing
an innocent man was going to be executed, is what made him finally
come forward. Then, a few months prior to the Evidentiary Hearing
occurring, Mr. Wilridge had an abrupt change of heart. He wrote two
letters, one to the Court and one to the State Attorney Office for the
Fourth Judicial Circuit, in which he claimed his affidavit about
[Sweet’s] case was invalid and inaccurate. Further, in the letter to the
Court, Mr. Wilridge even went so far as to specify that he did not
remember anything from that night pertaining to [Sweet’s] case.
At the Evidentiary Hearing, Mr. Wilridge’s inconsistency in
what he observed concerning the offenses continued. In his affidavit,
Mr. Wilridge stated that on the night of the offense he initially saw
three men standing around Ms. Cofer’s apartment, but at the
Evidentiary Hearing he testified that while he saw three individuals,
they were too far away for him to see any identifying features,
including whether they were male or female. Mr. Wilridge also wrote
in his affidavit that he saw a man standing in the doorway shooting
into Ms. Cofer’s apartment, but at the Evidentiary Hearing he testified
that he saw a man standing in the doorway with his hand extended and
did not see a gun or shots being fired. Mr. Wilridge further testified
that it was only after riding away that he heard gunshots, which he
claimed was common to hear in the neighborhood.
We conclude that this finding is supported by competent, substantial evidence.
Accordingly, Sweet is not entitled to relief on this claim.
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III. Newly Discovered Evidence
Lastly, Sweet claims that the postconviction court misapplied the Jones
standard for newly discovered evidence. “When the trial court rules on a newly
discovered evidence claim after an evidentiary hearing, we review the trial court’s
findings on questions of fact, the credibility of witnesses, and the weight of the
evidence for competent, substantial evidence.” Green v. State, 975 So. 2d 1090,
1100 (Fla. 2008). “As with rulings on other postconviction claims, we review the
trial court’s application of the law to the facts de novo.” Id.
With regard to claims of newly discovered evidence, this Court has
explained:
To obtain a new trial based on newly discovered evidence, a
defendant must meet two requirements: First, the evidence must not
have been known by the trial court, the party, or counsel at the time of
trial, and it must appear that the defendant or defense counsel could
not have known of it by the use of diligence. Second, the newly
discovered evidence must be of such nature that it would probably
produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512,
521 (Fla. 1998) (Jones II). Newly discovered evidence satisfies the
second prong of this test if it “weakens the case against [the
defendant] so as to give rise to a reasonable doubt as to his
culpability.” Id. at 526 (quoting Jones v. State, 678 So. 2d 309, 315
(Fla. 1996) (Jones I)). In determining whether the evidence compels a
new trial, the trial court must “consider all newly discovered evidence
which would be admissible,” and must “evaluate the weight of both
the newly discovered evidence and the evidence which was
introduced at the trial.” Jones v. State, 591 So. 2d 911, 916 (Fla.
1991).
Id. at 1099.
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After finding that Cofer and Wilridge were not credible, the postconviction
court turned to consider the cumulative effect of all evidence that could be
presented at a new trial. The court considered the additional evidence presented at
the evidentiary hearing on Sweet’s initial postconviction motion of McNish’s
testimony and Hansbury’s recantation. After noting its previous findings that
neither McNish’s testimony nor Hansbury’s recantation was credible, the
postconviction court concluded that “[i]n light of all the evidence presented at the
evidentiary hearing and all other evidence available,” Wilridge’s newly discovered
evidence and Cofer’s recantation “would not produce a reasonable probability of a
different outcome at a new trial.” Thus, it is clear that the postconviction court
properly applied the Jones standard to Sweet’s claim.
Accordingly, Sweet is not entitled to relief on this claim.
CONCLUSION
For the reasons stated, we affirm the postconviction court’s order denying
Sweet’s sixth successive motion for postconviction relief.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
Angela Cox, Judge - Case No. 161991CF002899AXXXMA
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James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Mark S. Gruber,
Julie A. Morley, and Margaret S. Russell, Assistant Capital Collateral Regional
Counsel, Middle Region, Temple Terrace, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney
General, Tallahassee, Florida
for Appellee
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