"Don Pumphrey is amazing and gets the job done right!! I would highly recommend him to anyone. " by Amanda, Past Client
"I couldn't have asked for a better law firm!" by Anonymous (Google Review 2), Past Client
""He’s who you want to talk to."" by Austin (2020), Past Client
"Would recommend if looking for a law firm that is committed to every case and personal circumstance" by Cameron J., Past Client
"If you have a fight on your hands, you want Don Pumphrey in your corner." by D. Williams, Past Client
"Mr. Pumphrey took one look at my case and had all of the charges dismissed" by Evie, Past Client
"[Don] is honest, truthful and the person you want in your corner." by J. Williams, Past Client
"Saved my life best lawyer ever!" by Jacob S., Past Client
"If you are looking for top-notch legal council either locally or abroad, look no further. Don Pumphrey and his staff will fight unremittingly for your your rights!" by Jeremy C., Past Client
"I was referred to Mr. Pumphrey’s law firm through a mutual friend who spoke highly of him. At no surprise, he came through for me in a huge way. He was effective and efficient. If you are in need of a top notch lawyer that gets the job done, Don Pumphrey is who you need!" by Jonathan C., Past Client
"You will not find a finer, more experienced criminal attorney in Tallahassee to handle mistakes made by yourself or your student." by Kim, Parent of Past Client
"During our initial phone conference with Mr. Pumphrey, we could tell that our son was in good hands." by Michelle K., Parent of Past Client
"Look no further and trust you child's case to Don Pumphrey. Please don't allow your child to settle for less. Kids will grow and learn but a bad legal decision will impact your child forever." by Rosanna O., Former Client
"If he is involved in your case, you can expect a thorough and compassionate experience with a very good outcome" by Ruth A., Relative of Past Client
"He worked relentlessly to achieve the best possible outcome in my circumstances. " by T.K., Past Client
Post-Conviction Motions for Newly Discovered Evidence
For purposes of seeking post-conviction relief in a criminal case, “newly discovered evidence” is defined as evidence that existed at the time of a trial but that could not have been discovered with reasonable diligence prior to the trial’s completion.
The petition for post-conviction relief based on newly discovered evidence must show:
the evidence was discovered after trial;
the failure to learn of the evidence was not caused by lack of diligence;
the new evidence is not merely impeaching or cumulative;
the new evidence is material to the principal issues involved; and
the new evidence would probably produce an acquittal if a new trial were granted
The attorneys at Pumphrey Law are experienced in filing motions for a new trial based on claims of newly discovered evidence after a criminal conviction in Tallahassee, Leon County and throughout the State of Florida.
Call (850) 681-7777 to discuss your case.
Prevailing on a Claim for Newly Discovered Evidence
To prevail in a claim to set aside a conviction based on newly discovered evidence, the defendant must satisfy a two-prong test.
First, in order to be considered newly discovered, the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his 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. To reach this conclusion the trial court is required to “consider all newly discovered evidence which would be admissible” at trial and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.”
In considering the second prong, the trial court should initially consider whether the evidence would have been admissible at trial or whether there would have been any evidentiary bars to its admissibility. Once this is determined, an evaluation of the weight to be accorded the evidence includes whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence.
Jones v. State, 709 So.2d 512, 521 (Fla. 1998) (citations omitted) (quoting Torres–Arboleda v. Dugger, 636 So.2d 1321, 1324–25 (Fla. 1994); Jones v. State, 591 So.2d 911, 916 (Fla. 1991)).
When reviewing the trial court’s decision on a newly discovered evidence claim following an evidentiary hearing, where the court’s findings are supported by competent, substantial evidence, the Appellate Court will not substitute its judgment for that of the trial court on questions of fact, credibility of the witnesses, or the weight given to the evidence by the trial court. Id. at 532.
Time Limits for Claims of Newly Discovered Evidence
Florida Rule of Criminal Procedure 3.850(b) provides, in pertinent part:
(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final unless it alleges that:
(1) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence….
The exception set forth in subsection (b)(1) extends the two-year time period to file a motion under rule 3.850. Harris v. State, 192 So.3d 685, 687 (Fla. 5th DCA 2016).
Therefore, if a petitioner files the Rule 3.850 motion within two years from the time that the motion alleges that the new facts were discovered, then the trial court must address whether the motion fell within the exception under rule 3.850(b)(1).
This article was last updated on Friday, March 25, 2017.
Attorney Don Pumphrey, Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney. Don has achieved over 100 not guilty verdicts at trial and over 2,000 dismissals.