Richard Wayne BAILEY, Appellant, v. STATE of Florida, Appellee. No. 2D07-328

December 3rd, 2008
District Court of Appeal of Florida, Second District.
Richard Wayne BAILEY, Appellant,
v.
STATE of Florida, Appellee.
No. 2D07-328.
Dec. 3, 2008.
Appeal from the Circuit Court for Charlotte County; J. Frank Porter, Judge.
Michelle Erin Berthiaume of Berthiaume Law Firm, P.A., Fort Myers, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
KELLY, Judge.
*1 Richard Wayne Bailey appeals his judgment and sentence for possession of a controlled substance and sale or delivery of a controlled substance. Bailey contends that the trial court erred in not requiring the State to disclose the identity of a confidential informant (CI) whose testimony was necessary to establish Bailey’s defense or, alternatively, in refusing to conduct an in-camera hearing in order to determine whether the State would be required to disclose the informant’s identity. We agree that the trial court should have considered the matter in-camera and, accordingly, we reverse.
Bailey was arrested and charged after the Charlotte County Sheriff’s Department used a paid CI to set up a drug transaction between Bailey and an undercover narcotics officer. Before his trial, Bailey moved to compel the State to disclose the CI’s identity. The sworn affidavit attached to his motion asserted that he was homeless and “down on his luck” when a man whose name he did not know offered to pay him $50 to deliver a container to another man at a specified location and then return with money the man would give him. The man who offered to pay Bailey to make the delivery was a CI; the man who was to receive the container was an undercover police officer. The affidavit states that the CI gave the container to Bailey, that Bailey delivered it as instructed, and that he did not know what was in the container before he delivered it. In his motion, Bailey asserted that the undercover officer testified in his deposition that he paid the CI to get Bailey “involved in the incident.” Thus, Bailey argued, the CI’s testimony was necessary to establish his defense of entrapment.
At the hearing on Bailey’s motion to compel disclosure, the State argued that Bailey was not entitled to disclosure because the State was not going to call the CI as a witness at trial, the CI was not involved in the transaction between the undercover officer and Bailey, and the CI did not witness the transaction. Bailey argued that he intended to call the CI as a witness to support his defense of entrapment and that the State’s argument ignored the facts contained in his affidavit. He contended that, at a minimum, the trial court should conduct an in-camera hearing during which it could hear from the informant to determine if the CI’s testimony would be relevant and helpful to Bailey’s defense of entrapment. The trial court denied Bailey’s motion without conducting an in-camera hearing.
The State has a limited privilege to withhold the identity of individuals who provide police with information regarding criminal activity. Roviaro v. United States, 353 U.S. 53, 59-60 (1957). Because the State has the privilege of nondisclosure, the burden is on the defendant claiming an exception to the rule to show why he is entitled to disclosure. Treverrow v. State, 194 So.2d 250, 252 (Fla.1967). In State v. Borrego, 970 So.2d 465 (Fla. 2d DCA 2007), we explained the burden placed on a defendant seeking to discover the identity of a confidential informant:
*2 The State’s privilege of nondisclosure may be overcome when an informant’s identity or the content of the informant’s communication would be relevant and helpful to a specific defense or when disclosure is “essential to a fair determination of the cause at issue.”McCray v. State, 730 So.2d 817, 817 (Fla. 2d DCA 1999); seeFla. R.Crim. P. 3.220(g)(2).
When asserting that disclosure of information is necessary to establish a specific defense, “[t]he defendant must make a preliminary showing of the colorability of the defense prior to disclosure.”State v. Hernandez, 546 So.2d 761, 762 (Fla. 2d DCA 1989); see Harris v. State, 939 So.2d 338 (Fla. 4th DCA 2006), review dismissed,946 So.2d 1070 (Fla.2006). The defendant must not only allege a legally cognizable defense, but he or she must also support the defense with sworn evidence. State v.. Davila, 570 So.2d 1035, 1038 (Fla. 2d DCA 1990) (holding that the defendant failed to establish by sworn proof that disclosure of the confidential informant’s identity was necessary to a legally recognized defense).“A bare allegation that the defendant cannot prepare his case without disclosure is insufficient.”State v. Mashke, 577 So.2d 610, 612 (Fla. 2d DCA 1991).
Id. at 467 (footnote omitted).
When a defendant files a sworn motion or affidavit alleging facts regarding the informant’s involvement that, if true, would support the possibility of a specific defense, the trial court is required to conduct an in-camera hearing to consider the necessity of the informant’s testimony and the State’s interest in nondisclosure. State v. Roberts, 686 So.2d 722, 723 (Fla. 2d DCA 1997); Beasley v. State, 354 So.2d 934, 935 (Fla. 2d DCA 1978); Munford v. State, 343 So.2d 67, 69 (Fla. 2d DCA 1977), quashed in part on other grounds,357 So.2d 706 (Fla.1978). Here, Bailey asserted a legally cognizable defense-entrapment-and he supported it with sworn facts. While Bailey has not alleged all the elements of a defense of entrapment, he is not required to do so. State v. Acosta, 439 So.2d 1024, 1027 n. 2 (Fla. 3d DCA 1983) (citing Munford ). A motion is sufficient to invoke an in-camera hearing if the defense is possible in light of the facts alleged. Id.
We conclude that the sworn facts in Bailey’s affidavit are sufficient to support the possibility that Bailey has an entrapment defense and that the CI’s testimony could be relevant to that defense. See Munford, 343 So.2d at 68-69. Accordingly, we reverse and remand for an in-camera hearing at which the trial court shall consider the testimony of the CI and determine if, in fact, the CI’s testimony is material and helpful to Bailey’s defense of entrapment and if so, whether disclosure of the CI’s identity should be ordered. See McCray v. State, 730 So.2d at 818;Acosta, 431 So.2d at 1027;Munford, 343 So.2d at 69. If the court determines that disclosure is required, then Bailey is entitled to a new trial. If the court determines disclosure is not required, it should enter an order containing specific findings to support that conclusion and Bailey’s conviction should be reinstated.
*3 Reversed and remanded for further proceedings.
VILLANTI and WALLACE, JJ., Concur.

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Timothy D. CLARK, Appellant, v. STATE of Florida, Appellee. No. 2D08-321

December 3rd, 2008
District Court of Appeal of Florida, Second District.
Timothy D. CLARK, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-321.
Dec. 3, 2008.
Appeal pursuant to Fla. R.App. P. 9.141(b)(2) from the Circuit Court for Pasco County; William R. Webb, Judge.
WALLACE, Judge.
*1 Timothy D. Clark appeals the summary denial of his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm in part the postconviction court’s order, and we reverse in part and remand for further proceedings.
I. RELEVANT PROCEDURAL HISTORY
Mr. Clark was convicted of capital sexual battery on April 27, 1995, and sentenced to life imprisonment with a mandatory minimum term of twenty-five years. This court affirmed Mr. Clark’s judgment and sentence in 1997. See Clark v. State, 700 So.2d 692 (Fla. 2d DCA 1997) (table decision).
Mr. Clark filed his current motion for postconviction relief in May 2007. In his motion, Mr. Clark advanced two claims for relief. First, he asserted that newly discovered evidence shows that a scientific theory advanced by the State at his trial has recently been discredited or abandoned. Mr. Clark alleged that this newly discovered evidence (1) was unknown at the time of his trial, (2) could not have been discovered by the exercise of due diligence, and (3) would probably produce an acquittal on retrial.
Second, Mr. Clark alleged that newly discovered evidence demonstrated that the State had failed to preserve critical physical evidence for DNA testing. Specifically, he alleged that sheriff’s deputies had collected the victim’s nightgown and panties and the towel worn by Mr. Clark on the night of the alleged sexual battery but that the State had failed to preserve these items for DNA testing.
The postconviction court summarily denied the first claim because the expert testimony was “not sufficient to be considered newly discovered evidence.”The postconviction court also ruled that even if the expert testimony qualified as newly discovered evidence, the testimony was not likely to result in an acquittal on retrial because the victim had testified at trial that Mr. Clark had sexually battered her. The postconviction court denied the second claim because the record conclusively refuted Mr. Clark’s allegation that the items in question had been collected as evidence and Mr. Clark knew or should have known at the time of trial that no such evidence had been collected.
II. DISCUSSION
A. Claim One: Expert Testimony
The postconviction court denied Mr. Clark’s first claim because the expert testimony was “not sufficient to be considered newly discovered evidence.”Newly discovered evidence is evidence that was unknown at the time of trial and that could not have been discovered by the use of due diligence. Rogers v. State, 957 So.2d 538, 552 (Fla.2007). In his motion, Mr. Clark claimed that the new scientific evidence was unknown to him and his trial counsel until Mr. Clark discovered it on March 26, 2006. Mr. Clark alleged further that the new evidence could not have been discovered previously by the exercise of due diligence because it was based on “recent medical studies, reports, and articles-not available at the time of [his] trial.” Thus Mr. Clark’s unrefuted factual allegations established that the scientific evidence was newly discovered because it was not discovered until March 26, 2006, and was based on scientific literature not available at the time of his trial. Because the postconviction court summarily denied the claim, we must accept the factual allegations as true to the extent that they are not refuted by the record. See Floyd v. State, 808 So.2d 175, 182 (Fla.2002). Therefore, we disagree with the postconviction court’s conclusion that the scientific evidence could not be considered newly discovered evidence.
*2 The postconviction court also denied the claim because the alleged scientific evidence probably would not produce an acquittal on retrial. In particular, the postconviction court noted that the victim had testified that Mr. Clark had sexually battered her. Although the postconviction court’s conclusion on this point may be correct, we cannot properly review its determination because the postconviction court did not attach to its order any portion of the record containing the victim’s testimony. In addition, the postconviction court did not attach to its order a copy of the trial testimony concerning the scientific evidence that Mr. Clark contends has recently been discredited. Accordingly, we reverse the summary denial of ground one and remand for further proceedings. On remand, if the postconviction court denies claim one again, it must attach relevant portions of the record conclusively refuting the claim or conduct an evidentiary hearing.
B. Claim Two: Failure to Preserve Evidence
Mr. Clark’s second claim of newly discovered evidence was based on an allegation that the State had acted in bad faith by failing to preserve evidence that was collected and examined. See Arizona v. Youngblood, 488 U.S. 51 (1988); Moore v. State, 903 So.2d 238 (Fla. 2d DCA 2005). The postconviction court denied this claim because the portions of the record attached to the order conclusively refuted the claim. The attachments to the order demonstrate that law enforcement did not take into evidence any clothing or towels. Because Mr. Clark’s allegations are conclusively refuted by the record, we affirm the postconviction court’s denial of claim two.
Affirmed in part, reversed in part, and remanded.
CASANUEVA, J., Concurs.
ALTENBERND, J., Concurs with an opinion in which CASANUEVA, J., Concurs.ALTENBERND, Judge, Concurring.
I concur in the outcome of this opinion and in the discussion of claim two. As to claim one, I realize that this claim appears facially sufficient under the modest pleading requirements usually applied to pro se litigants filing postconviction motions within the normal two-year period. I am inclined to believe, however, that the rules of procedure should impose heightened pleading requirements and require greater specificity in postconviction motions when the defendant claims that he has discovered new evidence after the expiration of the two-year time period. I believe that greater specificity in such motions is particularly appropriate when the claim challenges scientific evidence that was properly admissible at the time of trial. Otherwise, minimal allegations claiming a new development in scientific thought may routinely require expensive and time-consuming evidentiary hearings with little indication whether the allegations will ultimately merit relief.
Mr. Clark claims that an expert witness for the State provided an opinion at his trial in 1995 that was based on a scientific theory. He claims that the theory has been subsequently abandoned by scientists in the field. He claims that “Dr. Jocelyn Brown” would testify that the theory is no longer accepted within the relevant field. He provides neither an affidavit from this doctor nor any citation to a published article in which she or another scientist makes such a claim. He cites no case law from any jurisdiction holding the theory used at trial unreliable or inadmissible. I cannot determine from his motion whether this opinion evidence was a major portion of the State’s case or whether the State could prove the charges without this evidence. The admissibility of scientific evidence is a difficult topic both at trial and on direct appeal. It is far more difficult to analyze such an issue years after the conviction in the context of a postconviction motion alleging newly discovered evidence. I am content to require the trial court to give this motion more study, but I express no opinion on the merits of the claim or even on the proper standards or tests to apply when resolving such a motion.

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Eulie POLANCO, Appellant, v. STATE of Florida, Appellee. No. 4D08-25

December 2nd, 2008
District Court of Appeal of Florida, Fourth District.
Eulie POLANCO, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-25.
Oct. 22, 2008.
Rehearing Denied Dec. 2, 2008.
Anthony B. Britt of Britt, Ferguson, Hathaway, Holiday and Levy, PLC, Fort Lauderdale, for appellant.
No appearance required for appellee.
WARNER, J.
*1 Appellant moved for postconviction relief from her conviction for first-degree murder. The trial court summarily denied the claim. We affirm on all issues.
[1][2] Most prominently, appellant claims that her counsel should have filed a motion for disqualification of the trial judge. In order to establish a claim of ineffectiveness for failure to file a motion for disqualification, a defendant must show that a facially sufficient claim of disqualification was present. See Thompson v. State, 990 So.2d 482 (Fla.2008). We conclude appellant’s claim is legally insufficient. Appellant attaches an unfiled motion for disqualification, drafted after her conviction but before her direct appeal, reciting specific acts of conduct by the judge, as well as information from other court personnel, regarding the personal life of the judge, which information was learned during the trial. This motion was not signed by anyone, and more importantly, there is no affidavit or certificate from either trial counsel or anyone else asserting that the motion was made in good faith. SeeFla. R. Jud. Admin. 2.330(c). Although affidavits are attached to the motion for postconviction relief to support the grounds for disqualification, none of them confirm the acts of personal conduct alleged in the motion. Both the motion and the supporting affidavits rely on information about the trial judge from unnamed court personnel passed to the persons signing the affidavit. FN1
[3]“A legally sufficient motion for disqualification cannot be based upon rumors or gossip….”Barwick v. State, 660 So.2d 685, 693 (Fla.1995); see also Dura-Stress, Inc. v. Law, 634 So.2d 769, 770 (Fla. 5th DCA 1994) (Sharp, J., concurring) (pointing out that no Florida case has allowed disqualification based solely on hearsay. “Although the party moving for disqualification of a judge need not have personal knowledge of the facts asserted in an affidavit filed to establish a basis to disqualify a judge, the affiant clearly must have some first-hand knowledge upon which to swear to the truth of the facts alleged. Otherwise, the affidavit is not truly an affidavit.”) (footnote omitted); Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981) (although the party’s personal knowledge of the facts set forth in the motion may not be necessary, all requirements of the rule for disqualification must be met, and the supporting affidavits must be “fully credible”). Finally, the objective information contained in the motion (but not in the affidavits), as opposed to the rumor and courthouse gossip, is legally insufficient to support the standard for disqualification, i.e., that a reasonably prudent person would fear that he or she could not get a fair trial. Id.
We also affirm as to the remaining issues raised. All are either legally insufficient, conclusively refuted by the record, or fail because appellant cannot show the necessary prejudice required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
POLEN and TAYLOR, JJ., concur.
FN1. Only one of appellant’s trial attorneys provided an affidavit, and in it she did not state any information regarding the trial judge, only that the administrative office of the public defender asked her about information on the judge. The more direct statements made in the affidavits of the chief assistant public defender and the appellate public defender are at least double or triple hearsay.

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Daniel Lamar WILLIAMS, Appellant, v. STATE of Florida, Appellee. No. 1D08-2346

December 2nd, 2008
District Court of Appeal of Florida, First District.
Daniel Lamar WILLIAMS, Appellant,
v.
STATE of Florida, Appellee.
No. 1D08-2346.
Dec. 2, 2008.
An appeal from Circuit Court for Duval County. Michael R. Weatherby, Judge.
Daniel Lamar Williams, pro se, Appellant.
Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
*1 Appellant, Daniel Lamar Williams, challenges the trial court’s order summarily denying his claim that trial counsel was ineffective for failing to timely and properly object when the State’s expert witness read from a medical publication during direct examination. Because the record does not conclusively refute Appellant’s claim that he was prejudiced by trial counsel’s deficiency in failing to make a timely and specific objection, we reverse and remand.
On Appellant’s direct appeal, we determined that had trial counsel raised a timely and specific objection to the expert witness reading from a medical publication during direct examination, the trial court would have erred in overruling the objection. See Williams v. State, 935 So.2d 638, 638 (Fla. 1st DCA 2006). Thereafter, in Williams v. State, 970 So.2d 881, 881 (Fla. 1st DCA 2007), we reversed in part the order summarily denying Appellant’s claim that trial counsel was ineffective for failing to make such an objection, determining that the trial court failed to attach portions of the record to support its finding that Appellant was not prejudiced by counsel’s failure to object. On remand, the trial court again denied Appellant’s motion, finding that Appellant failed to establish that trial counsel’s actions fell below the professional standard expected and that the results of the trial would have been different but for counsel’s actions. This appeal followed.
The trial court’s finding that counsel’s actions did not fall below the professional standard expected is in conflict with our determination in Williams, 935 So.2d at 638, that the trial court would have erred in allowing the expert witness to read from a publication during direct examination had counsel timely and specifically objected to such. See State v. McBride, 848 So.2d 287, 289-90 (Fla.2003) (noting that the law of the case doctrine requires that questions of law decided on appeal must govern the case in the same court and the trial court through all subsequent stages of the proceedings). Given our determination on direct appeal, the only focus on remand from Appellant’s initial postconviction relief appeal should have been whether he was prejudiced by counsel’s deficiency. Although the trial court found that Appellant failed to establish prejudice, it did not attach portions of the record that conclusively refuted Appellant’s claim of prejudice.
Accordingly, we REVERSE the trial court’s order and REMAND with instructions either to attach portions of the record conclusively refuting Appellant’s claim of prejudice or to hold an evidentiary hearing.
WEBSTER, DAVIS, and HAWKES, JJ., CONCUR.

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Foreman v. State

November 26th, 2008
District Court of Appeal of Florida, Fourth District.
Crystal FOREMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-3484.
Nov. 26, 2008.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case No. 07-11400 CF10A.
Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
*1 Crystal Foreman was tried by jury and convicted of aggravated battery. In this appeal, Foreman argues her trial counsel provided ineffective assistance in failing to request that the jury be instructed on the justifiable use of non-deadly force. We affirm the conviction without prejudice to Foreman’s right to file a motion for postconviction relief, raising such claim. See Kidd v. State, 978 So.2d 868, 868 (Fla. 4th DCA 2008) (recognizing that adequacy of lawyer’s representation may not generally be raised on direct appeal and that such claims are properly raised in a motion for postconviction relief).
Affirmed.

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