Joseph Robert SPAZIANO, Appellant, v. STATE of Florida, Appellee, 660 So. 2d 1363

PER CURIAM. Joseph Robert Spaziano, through his counsel Michael A. Mello, has filed multiple motions and documents following the Governor’s signing of a fifth death warrant for Spaziano on August 4,1995. The motions fall into five distinct categories: (1) two motions for rehearing; (2) four motions to supplement the record; (3) two motions addressing actions by the office of the attorney general; (4) two motions relating to Mello’s representation of Spaziano; and (5) one catch-all motion concerning Spaziano’s rights.

The two principal motions are (1) an out-of-time motion for rehearing of a previous Florida Rule of Criminal Procedure 3.850 motion, which was denied in the circuit court in 1985 and affirmed by this Court in 1986; and (2) an out-of-time motion for rehearing of the direct appeal and judgment on the sufficiency of the evidence. To further these two motions, Mello filed four additional motions to supplement the record, including: (

a) motion to supplement the record to include a videotape; (

b) motion to supplement the record to include recent media coverage of this case; (

c) motion to supplement the record with media coverage of the Florida Department of Law Enforcement investigation; and (

d) motion to supplement the record with an unofficial transcript of the Florida Department of Law Enforcement’s interrogation of Anthony DiLisio. Subsequent to oral argument, Mello filed an affidavit executed under oath by Anthony Frank DiLisio, a primary witness for the prosecution, which states: KNOW ALL MEN BY THESE PRESENTS, that I, Anthony Frank DiLisio, of ... Pensacola, Florida 32534, do make, publish and declare freely, under penalty of perjury, this statement that I never under any circumstances went to the dump sight [sic] with Joseph Spaziano.

I went there in the company of law enforcement investigators and only in the company of law enforcement investigators. At trial, DiLisio testified that Spaziano took him to a dump and showed him the bodies of two females, and explained the specific route that Spaziano and DeLisio took to the dump.

In the aggregate, the motions filed seek to open by rehearing an appeal that was finalized more than thirteen years ago and a postconviction proceeding that was terminated with a denial of rehearing more than nine years ago. - Counsel has stated that the motions he has filed are not authorized in our present legal process. He states: Undersigned counsel candidly concedes that a plethora of procedural preclusions articulated by this court bar this instant action. As a motion [for] rehearing of an opinion by this court rendered in 1986, this motion is obviously untimely.

Treated as a new claim for postconviction relief, this action is barred by the one year time limit on Rule 3.851 motions. There are claim and issue preclusion barriers, because all of the legal issues raised in this motion have been raised by Mr. Spaziano in the past; there has been no intervening change in law; there have been new facts recently discovered, but they may not be of the magnitude necessary, under this court’s [precedents], to secure review. Finally, retroactivity principles bar this court from treating several aspects raised by Mr. Spaziano as issues cognizable at this time.

There are methods for the court to consider both newly discovered evidence and recanted testimony under procedures we have established in this State. With regard to newly discovered evidence, we recently broadened the test to allow a new trial when evidence would “probably” affect the verdict rather than requiring that it must “conclusively” affect the verdict. Jones v. State, 591 So.2d 911 (Fla.1991). With regard to the issue of recanted testimony, we have set out the standards for this type of situation in our recent decision in Armstrong v.

State, 642 So.2d 730 (Fla.1994), cert. denied, — U.S. —, 115 S.Ct. 1799, 131 L.Ed.2d 726 (1995). Spaziano has been before this Court on seven prior occasions; he has been before the United States District Court and before the United States Court of Appeals, which wrote an extensive opinion examining the twenty-three issues raised before the United States District Court. The United States Supreme Court has considered his case on the merits and has denied petitions for writs of certiora-ri on three occasions. The motions for rehearing filed in this cause are clearly not authorized.

However, consistent with our constitutional responsibility to refrain from dismissing a cause solely because an improper remedy has been sought, we have considered the contents of these motions and the recently filed supplemental affidavit to determine whether they have any basis for relief under our jurisdiction.

Under the unique circumstances of this cause, we conclude that these two out-of-time motions for rehearing, together with the supplemental affidavit of Anthony DiLisio, should be treated as a successive Rules of Criminal Procedure 3.850-3.851 motion based only on the newly discovered evidence of the recantation of the testimony of a significant witness, and the motion must be remanded to the Circuit Court of the Eighteenth Judicial Circuit for consideration of that issue. Given this finding, we conclude that the State should be allowed to respond to this narrow issue by 5 p.m. on Wednesday, September 13,1995.

Further, the trial judge to whom this cause is assigned is directed to hold an evidentiary hearing on the issue of the recanted testimony as newly discovered evidence no later than Friday, September 15, 1995. We decline at this time to grant a stay of execution, but allow the trial court an opportunity to address that issue. We further find that the motions to supplement the record with newspaper articles are clearly unauthorized and improper, and they are all stricken from the record in this proceeding.

Further, Spaziano has moved to disqualify the office of the attorney general and compel discovery from that same office. Both motions are denied as being without merit. Spaziano’s counsel, Mello, has also filed motions concerning his representation of Spaziano, specifically: (1) motion for appointment of counsel nunc pro tunc, and (2) motion to consider and decide whether pro bono counsel is obligated to move for withdrawal as counsel in this case. The office of the Capital Collateral Representative (CCR) represented Spaziano until at least January of this year.

In June 1995, it appears that Mello voluntarily undertook the representation of Spaziano. We note that this is not a new case for Mello since he represented Spa-ziano while Mello was employed with CCR. This is still, in our view, a CCR case, and CCR has the primary responsibility for this representation. We find that the Capital Collateral Representative orally argued the latest proceeding in this matter before the United States Court of Appeals for the Eleventh Circuit in 1994. We find that these motions are not proper under the particular circumstances of this case.

We find that Mello may continue the representation with assistance from CCR and, if possible, with the assistance of any resources available from the Volunteer Lawyers’ Resource Center. We deny Spaziano’s catch-all motion requesting us to compel release of the Florida Department of Law Enforcement investigation report, to hold an evidentiary hearing on that matter, to enter a stay of execution, or to alter our reading of the public records law. We also deny the amicus Volunteer Lawyers’ Resource Center’s motion for a stay in this cause.

For the reasons expressed, we remand this cause to the Circuit Court of the Eighteenth Judicial Circuit for an evidentiary hearing on the issue of the recanted testimony. It is so ordered. GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur. KOGAN, J., concurs in part and dissents in part with an opinion, in which SHAW and ANSTEAD, JJ., concur. .The test we expressed in Armstrong, 642 So.2d at 735, is as follows: Recantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial. Brown v.

State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981); Bell v. State, 90 So.2d 704 (Fla.1956). 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. Bell. "Moreover, recanting testimony is exceedingly unreliable, and it 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.” Id. at 705 (quoting Henderson v. State, 135 Fla. 548, 561, 185 So. 625, 630 (1938) (Brown, J., concurring specially)). 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. Id. . Spaziano v. State, 393 So.2d 1119 (Fla.), cert. denied, 454 U.S. 1037, 102 S.Ct. 581, 70 L.Ed.2d 484 (1981); Spaziano v. State, 433 So.2d 508 (Fla. 1983), affirmed, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Spaziano v.

State, 489 So.2d 720 (Fla.), cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986); Spaziano v. State, 545 So.2d 843 (Fla. 1989); Spaziano v. Dugger, 557 So.2d 1372 (Fla.1990); Spaziano v. State, 570 So.2d 289 (Fla.1990); Spaziano v. Dugger, 584 So.2d 1 (Fla.1991). . Spaziano v. Singletary, No. 91-850-CIV-ORL-18 (M.D.Fla. Nov. 30, 1992) (denial of petition for writ of habeas corpus), affirmed, 36 F.3d 1028 (11th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995). . Spaziano v.

Singletary, 36 F.3d 1028 (11th Cir. 1994), cert. denied, - U.S. -, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995). . Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). . It is understood that the Volunteer Lawyers' Resource Center may lose funding as of October 1, 1995. The Center will, however, continue to exist as an entity until that time. • . See Parole Comm'n v. Lockett, 620 So.2d 153 (Fla.1993) (Florida Constitution requires clemency records be kept confidential except as authorized by the Governor); see also Asay v. Florida Parole Comm'n, 649 So.2d 859 (Fla. 1994).