Padron v. State (827 So. 2d 393, 2002)

GREEN, Judge.

Lazaro Padrón appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Padron’s motion raised a claim of newly discovered evidence based upon the recantation of trial testimony. We reverse and remand for an evidentiary hearing.

Padrón presented to the trial court alleged newly discovered evidence from three sources. He filed an affidavit and separate sworn statement from codefend-ant Jorge Gonzales (the shooter in the botched robbery Padrón was allegedly involved with) recanting his trial testimony and saying Padrón is innocent. He filed an affidavit and separate sworn statement from Maria Ramirez (the ex-wife of Omar Ramirez, an important state witness now apparently unavailable) alleging that Omar Ramirez, knowing Padrón was innocent, still lied in his trial testimony and implicated Padrón. He also filed three affidavits and three separate sworn statements from prisoners confirming that Jorge Gonzales did recant his trial testimony.

Recently, the Florida Supreme Court in McLin v. State, 27 Fla. L. Weekly S743, - So.2d -, 2002 WL 31027106 (Fla. Sept. 12, 2002), set out the legal principles governing the consideration of a rule 3.850 motion containing a claim of newly discovered evidence based upon the recantation of trial testimony. The court held that the trial court must conduct an evidentiary hearing on the claim unless the sworn allegations supporting the claim are conclusively refuted by the record. Id. at 745, ■— So.2d at-. Generally, an eviden-tiary hearing is required to resolve any credibility questions which arise from the sworn allegations. Id. There may be cases where, from the face of the sworn allegations, it can be determined that the allegations are inherently incredible. Id. Otherwise, if no evidentiary hearing is held, the trial court is required to accept the sworn allegations supporting the claim as true. Id.

The sworn allegations which support Pa-dron’s claim are not inherently incredible. The credibility determinations required to assess the recanted testimony need to be made by the trial court at an evidentiary hearing. Since the trial court did not conduct an evidentiary hearing on this claim, this court and the trial court must accept these allegations as true. Because of this, even though the trial court attached portions of the trial transcript to its order, the allegations Padrón has made are not conclusively refuted by the record. Therefore, the trial court must hold an evidentia-ry hearing before ruling on Padron’s rule 3.850 motion.

Reversed and remanded for an eviden-tiary hearing.

FULMER and DAVIS, JJ., Concur.