
    Charles Owen DWYER, Appellant, v. STATE of Florida, Appellee.
    No. 97-3233.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 1999.
    Charles Owen Dwyer, Jasper, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PETERSON, J.

Charles Owen Dwyer appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion in which he made claims of ineffective assistance of his trial counsel, newly discovered evidence of the victim’s violent nature, and a Brady violation. We vacate the order based on the first two claims and remand for an evidentiary hearing.

Dwyer’s conviction rested entirely on the jury’s consideration of the credibility of Dwyer and a co-defendant versus the testimony of the two victims. Dwyer alleged in his 3.850 motion that one of the victim’s reputation for violence constituted newly discovered evidence because it was not discoverable at the time of trial through the exercise of due diligence. Alternatively, Dwyer alleged that he received ineffective assistance because his counsel ignored his pleas to obtain the services of an investigator to seek evidence of the victim’s background, character, and reputation, and that, because his counsel hired an investigator only immediately before the trial, he was unable to discover any useful background information about the victim.

The trial court granted an evidentiary hearing “for the limited purpose of determining whether the affidavits of approximately 21 witnesses constitute newly discovered evidence which, would have been admissible at trial and would probably have resulted in a different verdict.” Five witnesses ultimately appeared on behalf of the appellant and confirmed that they would have testified at trial that they knew one of the victims to have a reputation for being aggressive and violent. Four out of five of the witnesses had been involved in previous skirmishes with this victim in which charges of armed trespass or similar charges were brought, and later dismissed, against the witnesses or members of their families.

Following the hearing, the trial court held, inter alia, that the newly discovered evidence could not be revisited because this court had previously affirmed Dwyer’s conviction. Dwyer v. State, 661 So.2d 840 (Fla. 5th DCA 1995); see Turner v. Dugger, 614 So.2d 1075, 1078 (Fla.1992) (claims procedurally barred if they, or variations thereof, were raised on direct appeal). Although this court did affirm the conviction, the only issue considered that involved the “newly discovered evidence” was a procedural issue, to wit: whether the trial court improperly struck Dwyer’s second motion for new trial. The second motion for a new trial is not a motion provided for in the Florida Rules of Criminal Procedure. The issue on appeal did not raise Dwyer’s entitlement to a new trial based on the discovery of new evidence. The issue was whether the trial court abused its discretion in determining that this new evidence did not establish that the testimony adduced at trial was fraudulently obtained and resulted in a verdict so tainted that the unusual remedy of granting an unauthorized, second and belated motion for new trial was warranted. Fraudulently obtained testimony may be raised by extraordinary means. State v. Glover, 564 So.2d 191 (Fla. 5th DCA 1990). Dwyer’s newly discovered evidence claim was procedurally barred from being considered in Dwyer’s prior appeal that raised the fraud issue. We believe that the trial court has not yet considered the impact the newly discovered evidence may have had on the verdict of guilt without being influenced by an erroneous belief that the issue had already been reviewed on the prior appeal.

The trial court also found merit in the state’s argument that Dwyer’s newly discovered evidence claim was contradictory and inconsistent with his ineffectiveness of counsel claim. Dwyer’s contention that the newly discovered evidence could not have been discovered with due diligence seemed contradictory to his claim that counsel was ineffective for failing to timely discover that evidence. However, Dwyer was only advancing alternative theories of relief in his motion for post conviction relief based upon the same underlying facts. As noted by the second district in Janear v. State, 711 So.2d 143, 144 (Fla. 2d DCA 1998), the contradiction is not between the underlying evidentiary facts alleged in the motion, but between the alternative ultimate conclusions that could be derived from the single set of underlying facts.

The lower court further rejected Dwyer’s ineffective assistance of counsel claim based on the erroneous belief that even if defense counsel had discovered the omitted reputation witnesses, such evidence was not likely admissible because Dwyer did not know of the alleged victim’s reputation for violence. Generally, evidence of a victim’s character is inadmissible, but a defendant who alleges self-defense can show, through the testimony of another witness, that the alleged victim had a propensity for violence, thereby inferring that the alleged victim was the aggressor. Smith v. State, 606 So.2d 641 (Fla. 1st DCA 1992); see also Ehrhardt, Florida Evidence § 404.6 (1999 ed.); Graham, Handbook of Florida Evidence § 404.1 (1987). A defendant’s prior knowledge of the victim’s reputation for violence is irrelevant, because the evidence is offered to show the conduct of the victim, rather than the defendant’s state of mind. Ehrhardt. Accordingly, evidence of one of the victim’s reputation for violence was not prohibited by Dwyer’s lack of prior knowledge of that victim’s character traits.

We reverse and remand for a new evidentiary hearing on Dwyer’s claims of newly discovered evidence and ineffective assistance of counsel. Upon remand, the trial court shall determine whether, through the exercise of due diligence, the reputation witnesses could have been timely discovered and if their testimony could have been presented at trial. If the reputation witnesses could not have been discovered through the exercise of due diligence, this newly discovered evidence must be evaluated to determine whether it would “probably produce an acquittal on retrial.” Jancar, at 145, citing Jones v. State, 591 So.2d 911, 915-16 (Fla.1991), cert. denied, 523 U.S. 1041, 118 S.Ct. 1351, 140 L.Ed.2d 499 (1998). Alternatively, if the lower court concludes that the evidence could have been found with the exercise of due diligence, it must then determine whether the failure of Dwyer’s trial counsel to discover the evidence was an omission that fell below a standard of reasonableness under prevailing professional norms. Id. If so, the lower court must also determine whether this oversight probably affected the outcome of the proceedings. Id., citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

ORDER VACATED AND REMANDED.

GOSHORN, J., concurs.

HARRIS, J., dissents, with opinion.

HARRIS, J.,

dissenting.

I respectfully dissent.

I accept appellant’s contention that he discovered after the trial, and could not have discovered earlier, the violent nature of Lawson, one of the victims. I agree also that such evidence might be relevant under certain circumstances in his claim of self-defense. And I agree with the majority herein that the mere fact that we affirmed without opinion appellant’s previous appeal, which included some reference to this late discovered evidence, does not obstruct Dwyer’s current effort to obtain a new trial.

I dissent not because some law prevents appellant from raising the issue; I dissent because the facts testified to by him and his co-defendant at trial preclude relief because they demonstrate that he cannot meet the Jones standard that in order to obtain relief based on newly discovered evidence “the evidence must be of such nature that it would probably produce an acquittal on retrial.” The trial court denied relief, at least partially, because there was no showing “how counsel’s performance affected the outcome of the case.” I agree with the trial judge.

Self-defense involves an admission and avoidance: “I shot the victim but I did so in order to protect myself or another.” It does not apply, at least generally, when the defendant claims the shooting was an accident. Pimentel v. State, 442 So.2d 228 (Fla. 3d DCA 1983), rev. denied, 450 So.2d 488 (Fla.1984).

In this case, Dwyer was convicted of the attempted first degree murder of Lawson and the attempted first degree murder of Norris. Even though Dwyer admittedly was unaware of the victim’s reputation for violence at the time of the incident, nevertheless, as indicated by the majority, such testimony might be relevant to show that the victim was the aggressor. But that depends, I submit, on the defendant’s claiming that the victim was in fact acting aggressively at the time the injury was inflicted.

According to the defendants’ testimony, the two victims approached the defendants at night on a dark road. The victims pretended to be policemen and one of them pulled a gun on the defendants. Then the defendants disarmed the victims! Had the shooting and attempted shooting taken place during the period that Dwyer contends he and his companion were resisting the aggression of the victims, this newly discovered evidence would be relevant. But consider Dwyer’s testimony taken from his brief filed in his initial appeal concerning the shooting involving Norris (the bullet actually hit Lawson):

Dwyer then testified as to the actual shooting. He came into contact with Norris as he reached for the radio wires. [Dwyer was afraid that Norris would call for help.] He did not point the gun at Norris and fire. Rather Norris’ movement caused the gun to go off. The gun was leaning against the back of Norris’ shoulder and went off when Norris moved. He did not know why the gun went off, but it was not because he pulled the trigger.

This testimony simply does not justify the majority’s position that appellant was defending himself at the time of the accident. As for waiting for help, as suggested in the majority’s footnote 3, instead of using the radio to call the police, appellant was, according to his testimony, attempting to disable it. Self-defense should not be so broadly defined or applied that it becomes a license for murder.

As to the self-defense claim urged by appellant concerning Norris, it is improbable, for two reasons, that informing the jury of Lawson’s violent nature would have affected the verdict. Both reasons are contained within the jury instruction on justifiable use of deadly force.

The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable.

By Dwyer’s admission, the victims were overcome and disarmed. There was no evidence that they had access to any other weapons. Dwyer and Perkins had the only weapons shown by the record and were in control of the scene. Nothing prevented them, except perhaps a desire for retribution, from then getting into their vehicle and driving away. Indeed that is exactly what they say they did after the shooting and after a car passed which observed the incident and might well have sent help. Nothing in the record indicates why they could not have done so before the shooting. Lawson’s reputation for violence, even if known by the jury, would not change this at all.

If you find that [the victim] had a reputation of being a violent and dangerous person and that his reputation was known by the defendant, you may consider this fact in determining whéther the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

First, of course, Dwyer was unaware of any such reputation. But even if he knew of Lawson’s reputation, it could have no bearing on the Norris incident. He does not contend that his concern about Lawson played any role in the “accidental” shooting involving Norris. Dwyer claims the gun accidently discharged when he bent over Norris to disable the radio because Norris moved. Lawson’s reputation would not change this at all. There was no testimony that at the time of the shooting Dwyer believed that Norris (or Lawson) posed .any imminent danger to either himself or his co-defendant, Perkins, the only two who possessed guns.

It is not appropriate to shoot even violent people after they are disarmed. The only purpose of admitting Lawton’s reputation evidence under the facts of this case would be to prejudice the jury against the victims.

Dwyer’s second conviction for attempted murder was based on the aider and abetter theory involving Perkins’ action relating to Lawson. Lawson testified that Perkins pointed his weapon at Lawson and pulled the trigger but the gun misfired. Perkins’ defense to this charge was that it did not happen. He never pulled the trigger and the gun did not misfire. The majority does not indicate how Lawson’s reputation could affect this count. Again, Lawson’s reputation for violence, even if Perkins knew about it, would be irrelevant to this defense. It is highly improbable that the jury would find self-defense to the attempted shooting when Perkins claimed it never happened.

Because of the defenses chosen by Dwyer, accident in the case involving Norris and denial in the case involving Lawson, the newly discovered evidence of Lawson’s reputation for violence, even if submitted to the jury, would not “probably produce an acquittal on retrial” and therefore the trial judge was right in denying relief.

I would affirm the trial court. 
      
      . Rule 3.850 has supplanted the writ of co-ram nobis as the means of seeking post-conviction relief on the basis of newly discovered evidence. Scott v. Dugger, 604 So.2d 465 (Fla.1992).
     
      
      . We agree with the trial court that the state did not withhold exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
     
      
      . The dissent attempts to isolate the shooting and treat it separately from the entire event. We find it impossible to do so. If victim Lawson was an armed aggressor, Dwyer’s subsequent act of disarming Lawson was an act of self-defense. Once Dwyer and his co-defendant were in possession of the victims’ firearms, (although it does not appear to be clear how many weapons or firearms Lawson and his companion possessed, either on themselves or in their vehicle), the transaction was not at an end; Dwyer was entitled to hold Lawson and the other victim at bay until Dwyer either could safely depart or lawful assistance arrived. The fact that Dwyer alleges he shot Lawson by accident while exercising the right of self-defense does not eliminate the "self-defense against an aggressor” principle. Williams v. State, 588 So.2d 44 (Fla. 1st DCA 1991) (defendant entitled to self defense instruction where defendant alleged that during the course of the altercation in which he was defending another, his knife slipped open and struck victim in the shoulder). The principle continues until some intervening act occurs, such as a departure and return or an unreasonable expiration of time between disarmament and departure, or some other factual scenario which makes it no longer reasonable for a jury to conclude that an accident resulted from a justifiable use of force. Here, each side of the altercation vigorously accused the other of being the initial aggressor and disagreed over the course and cause of events that followed. The jury was entitled to hear evidence of Lawson's reputation in order to fully evaluate the conflicting contentions regarding the identity of the initial aggressor, Fine v. State, 70 Fla. 412, 70 So. 379 (1915); Pino v. Koelber, 389 So.2d 1191, 1193 (Fla. 2d DCA 1980), as well as the ensuing actions and intentions of Lawson. Hodge v. State, 315 So.2d 507 (Fla. 1st DCA 1975).
     
      
      . Jones v. State, 591 So.2d 911, 915 (Fla.1991).
     
      
      . There is an exception when the accidental infliction of injury or death is inextricably intertwined with one’s act in defense of himself or another. For example, "I hit him in the head with a gun to keep him from reaching the knife but the gun accidently went off, hitting him between the eyes.” See generally Williams v. State, 588 So.2d 44 (Fla. 1st DCA 1991). Although the testimony in this case does not support the exception, the claim is not that a self-defense instruction was not given (it was given at least in the Perkins case); it seems to be Dwyer's position that the self-defense claim would have been bolstered by this newly discovered evidence.
     
      
      . He was also convicted of robbery and criminal mischief.
     
      
      . The majority's footnote 3 infers that the victims may have had other weapons hidden on themselves or in their vehicle. There is no record support for this supposition.
     
      
      . Dwyer's co-defendant, not involved in this appeal, was also convicted of aggravated battery for a beating inflicted on Lawson during the time a weapon was being taken from him. Even though self-defense would be a legitimate response to this charge, the issue is not before us.
     