Opinion
No. 98-440.
Opinion filed June 25, 1999.
Appeal from the Circuit Court for Orange County, Jay Paul Cohen, Judge.
James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Steven J. Guardiano, Senior Assistant Attorney General, Daytona Beach, for Appellee.
Julio Enrique Rolon appeals his judgment and sentence entered by the trial court after a jury found him guilty of attempted second-degree murder with a firearm, arguing that 1) the trial court abused its discretion in denying his motion for new trial on grounds that there was newly discovered evidence, and 2) the state failed to establish by a preponderance of the evidence that he qualified to receive an enhanced penalty under the Criminal Street Gang Prevention Act of 1996. We affirm.
§§ 777.04, 782.04(2), Fla. Stat. (1997).
§ 874.04, Fla. Stat. (1997).
The state charged Mr. Rolon with shooting an unarmed victim with a shotgun. Mr. Rolon's girl friend, Angela Seda, was charged with being an accessory after the fact. Mr. Rolon and Ms. Seda were tried together, but at the conclusion of the state's case the trial court entered a judgment of acquittal in favor of Ms. Seda. The jury returned a verdict of guilty as charged against Mr. Rolon and the trial court adjudicated him guilty.
Approximately one month after the verdict was returned, Mr. Rolon filed a motion seeking a new trial pursuant to Florida Rule of Criminal Procedure 3.600(a)(3) alleging newly discovered evidence of an alibi. The "newly discovered evidence" was described in an affidavit submitted by Ms. Seda. Essentially, the affidavit stated that at the time of the shooting Mr. Rolon and Ms. Seda were together at her apartment. The trial court denied the motion and proceeded to sentencing. On appeal Mr. Rolon argues that the trial court erred in denying his motion for new trial. We disagree.
In order to set aside a conviction on the basis of newly discovered evidence the allegedly new evidence must have been unknown by the trial court, the defendant, or counsel at the time of trial, and it must appear that the defendant or his counsel could not have discovered this evidence through the exercise of diligence. See Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla. 1994). As applied to this case, Mr. Rolon's claim that he did not know of his alibi defense at the time of trial is implausible. In her affidavit Ms. Seda states that Mr. Rolon was with her watching a movie when the victim was shot. Assuming that this statement is accurate, Mr. Rolon necessarily knew of this alibi defense at the time of trial. Therefore, the trial court properly denied Mr. Rolon's motion for a new trial. See id.
We also reject as meritless Mr. Rolon's contention that the trial court erred in determining that he qualified for enhanced sentencing pursuant to the Criminal Street Gang Prevention Act of 1996 (the Act). See § 874.04, Fla. Stat. (1997). The state sufficiently established 1) the existence of "a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts"; 2) that the group "consists of three or more persons who have a common name or common identifying signs, colors, or symbols"; and 3) the gang has "two or more members who, individually or collectively, engage in or have engaged in a pattern of criminal street gang activity." § 874.03(1), Fla. Stat. (1997). We note that, since Mr. Rolon has failed to challenge the constitutionality of the Act on direct appeal, this claim of error has not been preserved for appellate review.See § 924.051, Fla. Stat. (1997). After the instant appeal was filed and briefed, this court issued its opinion in O.C. v. State, 722 So.2d 839 (Fla. 5th DCA 1998), rev. granted, 727 So.2d 911 (Fla. 1999), holding that the Act is facially unconstitutional. Thus, we affirm Mr. Rolon's sentence without prejudice so that he can seek postconviction relief on grounds that the Act is unconstitutional. See Garcia v. Carmar Structural, Inc., 629 So.2d 117, 119 (Fla. 1993).
AFFIRMED.
DAUKSCH and GOSHORN, JJ., concur.