
    STATE of Florida, Appellant, v. Lorenzo DUNNAWAY, Appellee.
    No. 4D98-4337.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2001.
    Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellant.
    Mark Wilensky of Dubiner & Wilensky, P.A., West Palm Beach, for appellee.
   GROSS, J.

We affirm the trial court’s order granting a new trial pursuant to Florida Rule of Criminal Procedure 3.600. For this court to overturn such an order, “there must be a clear showing that the trial court abused the broad discretion accorded it in ruling on a motion for a new trial.” State v. Hart, 632 So.2d 134, 134 (Fla. 4th DCA 1994) (citations omitted). “In addition, a stronger showing is required to overturn an order granting a new trial than to overturn an order denying a new trial.” Id. at 135.

With admirable candor, the trial judge indicated that “this [was] a case that [she] rushed to trial too fast.” This recognition that the defense did not have adequate time to prepare for trial supports the conclusion that the defense was not able to discover the testimony of the new witness by the use of due diligence. The judge found that the difficulty in locating the witness was exacerbated by “the particular milieu in which this crime occurred.”

The judge was on the scene during the development of this case. She presided over the trial. Unlike an appellate court, she is fully informed as to the equities, the subtleties of the case, and the difficulties of trial preparation. It is exceedingly rare for a trial judge to say that a case was rushed to trial too fast. The law encourages such candor by trial judges and defers to their attempt to correct the injustices that occasionally ensue from the hurried pace of crowded dockets in busy criminal courtrooms. On this record, the trial court’s ruling is sustainable either under Rules 3.600(a)(3) or 3.600(b)(8).

AFFIRMED.

FARMER, J., concurs specially with opinion.

GUNTHER, J., dissents with opinion.

FARMER, J.,

concurring specially.

Our system of criminal justice is not based on multiple trials for the same case. Both sides are usually given only one chance to offer all their evidence. We do not suffer either the state or the accused to keep doing it until they get it right. The justification is that they will have a fair chance to get ready for their day in court. With reasonable preparation time we can be confident of the reliability of the outcome.

It is not unfair or illogical to insist that a defendant produce all the evidence and witnesses at the first and only trial if he is given sufficient preparation time. When a defendant claims afterwards that newly discovered evidence would change the result, the law can then understandably require that such evidence should have been unknown by him or his counsel at the trial and that they could not, by due diligence, have discovered the evidence in time to use it. Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-1326 (Fla.1994); Jones v. State, 591 So.2d 911, 916 (Fla.1991), cert. denied, 516 U.S. 1057, 116 S.Ct. 731, 133 L.Ed.2d 682 (1996).

In this case, however, the trial judge determined that defendant did not, in fact, have a reasonable opportunity to prepare his defense at the original trial. Because he was not given ample time to make ready, he cannot be considered as having voluntarily decided to forego producing absent witnesses and evidence at the trial. In this circumstance, he should not have to show that the evidence he would adduce at a new trial was unknown to him or unavailable at his first trial.

Given unreasonably short preparation time, the law cannot possibly hold that the accused should nonetheless have produced all the evidence that a fair amount of preparation time would have allowed him to develop. The denial of sufficient time to do something contradicts the contention that with diligent and harder work someone could still have done it.

Unfairly rushing a case to trial means that any reasonable confidence in the reliability of the outcome is considerably weakened. Appellate judges are not very likely to enhance confidence in such an outcome by simply pronouncing the result fair — less so by declaring that the accused should have been even more assiduous while he was being unfairly hurried to trial. Thus when a trial judge finds that a case has been unfairly pushed to a precipitate trial, that fact alone should be sufficient to justify a new trial without any further inquiry into whether the defendant could have mounted a reasonable defense at the rushed trial if only he had somehow been more persevering.

On this basis I concur in Judge Gross’s opinion.

GUNTHER, J.,

dissenting.

I respectfully dissent. The Defendant filed an amended motion for a new trial on the grounds of newly discovered evidence. The motion alleged, inter alia, that “neither Lorenzo Dunnaway nor his undersigned counsel could have discovered and produced such evidence at trial, in that neither witness was apparently interviewed by the police officers investigating the case, and Ms. Bailey lives in Pahokee, Florida, which is a substantial distance from Riviera Beach, Florida, the city in which the subject incident took place.”

At 'the hearing, Terry Graves, the Defendant’s brother, testified that through his own investigation conducted after the Defendant’s conviction, he found Bailey and discovered from her that the victim had a weapon. Although he had asked around for information before the conviction, he testified that he did not actively pursue anything until after the conviction. Once he started actively pursuing his investigation, it took him a week or two to find Bailey. He testified that he expended a tremendous amount of effort to find her and that because the community was comprised predominately of African Americans and there was an absence of trust in the area, he did not believe a private investigator could have obtained the same results.

Laura Bailey’s unrebutted testimony was that she has lived at her parent’s home at the same address in Pahokee for eighteen years, the telephone number has been the same for the last twenty-nine years, her phone number and address are in the phone book, and she has not been hiding from anyone.

The Defendant testified that he was precluded from actively investigating his case because he was incarcerated. He gave his attorney names of witnesses, but despite seeing Bailey at the bar on the night of the murder, he did not mention Bailey to his attorney. He knew who Bailey was, but did not know her name or how to get in touch with her. However, he testified that he knew Bailey’s boyfriend and that the Defendant’s cousin and Bailey’s boyfriend were friends. In addition, he recognized that if he needed to get in touch with Bailey’s boyfriend, he could get the information from his cousin. The Defendant testified that his cousin has lived in Pahok-ee all his life.

Based on Graves’, Bailey’s, and the Defendant’s testimony, the defense attorney argued that Laura Bailey’s testimony constitutes newly discovered evidence and it would establish a self-defense defense.

The trial court granted the motion, finding that the testimony of defense witness Laura Bailey constitutes new material evidence and such testimony could not have been discovered by the Defendant or his attorney by the exercise of reasonable diligence because of the particular milieu in which the crime occurred.

“Two requirements must be met in order to set aside a conviction or sentence because of newly discovered evidence.” Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-26 (Fla.1994). “First, the asserted facts ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.’ ” Id. (quoting Jones v. State, 691 So.2d 911, 916 (Fla.1991)); see Fla.R.Crim.P. 3.600(a)(3); Totta v. State, 740 So.2d 57 (Fla. 4th DCA 1999). “Second, ‘the newly discovered evidence must be of such a nature that it probably would produce an acquittal on retrial.’ ” Torres-Arboleda, 636 So.2d at 1324-25 (quoting Jones, 591 So.2d at 915); see Fla.R.Crim.P. 3.600(a)(3); Totta, 740 So.2d at 57.

In the present case, the first prong has not been met. Although the trial court volunteered the case had been pushed too fast, the fact remains that on the night of the murder, the Defendant knew Bailey was in the bar but failed to so advise his attorney. He may not have known Bailey’s name or how to get in touch with her, but he knew that his cousin and Bailey’s boyfriend were friends, and he knew how to get in touch with his cousin. He had the opportunity to provide his attorney with witnesses, but he failed to mention Bailey.

With regard to Bailey’s testimony, it is noteworthy that Bailey has resided at the same address longer than some sitting Florida judges have been residents of this state. Considering Bailey’s life-long connection and presence in the Pahokee community, I conclude that the record does not support the trial court’s conclusion that Bailey could not be discovered by the exercise of reasonable diligence because of the “particular milieu” in which the crime occurred. Furthermore, it was possible for Bailey to be found by exercising diligence, because within one to two weeks of actively investigating, Graves found Bailey and discovered she saw the victim with the ice pick. Thus, it appears that Bailey’s testimony could have been easily discovered with the exercise of reasonable diligence.

In addition, while it is admirable that the trial judge suggested she pushed the case too fast, it does not elevate Bailey’s testimony into “newly discovered evidence.” The Defendant’s own testimony reveals that the defense had the ability to discover Bailey’s testimony with reasonable diligence from the very night of the murder, because the Defendant saw Bailey at the bar on the night of the murder. As such, the defense knew Bailey was a potential witness from the night of the murder and had seven months between the filing of the information and the trial to locate her.

Because the first prong of the two-prong newly discovered evidence test has not been met, I conclude the trial court abused its discretion in granting a new trial. Accordingly, I would reverse and remand. 
      
      . Or so I take her finding that she “pushed the case [to trial] too fast.”
     
      
      . As I ponder this notion that one could nevertheless have been more diligent while being forced to an early trial, a black-and-white image from the early days of television flickers in and out of my mind's eye: Lucy Ricardo desperately tries to keep up with the rapidly increasing speed of the confectionary production line gone absurdly awry. Sometimes all the effort in the world is in vain.
     