304 So.3d 286
Fla.2020Background:
- Dillbeck was convicted in 1990 of first-degree murder, armed robbery, and burglary and sentenced to death; convictions and sentence affirmed on direct appeal.
- He filed multiple postconviction motions over the years; two successive motions were previously denied by this Court.
- In May 2019 Dillbeck filed a third successive 3.851 motion alleging newly discovered evidence: 2019 doctors’ reports, a diagnosis of Neurodevelopmental Disorder associated with Prenatal Alcohol Exposure (ND-PAE), qEEG scans, and neurocognitive testing that he says explain his behavior and would likely mitigate to life imprisonment.
- ND-PAE was added to the DSM-5 in 2013; qEEG has been recognized in Florida decisions since at least 2005.
- Dillbeck argued the one-year timeliness clock began on May 10, 2018 (the date of Dr. Sultan’s evaluation) and thus his May 2019 filing was timely; the trial court dismissed the motion as untimely and Dillbeck appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dillbeck’s successive 3.851 motion alleging newly discovered ND-PAE diagnosis and qEEG/neurocognitive evidence was timely under Fla. R. Crim. P. 3.851(d)(2)(A) | Dillbeck: facts became knowable only on May 10, 2018 (Dr. Sultan evaluation); filing within one year (May 2019) is timely | State: diagnosis and evidence were discoverable earlier; ND-PAE diagnosable since 2013 and qEEG known since 2005; Dillbeck and counsel knew of fetal-alcohol–related brain damage before sentencing; Dillbeck failed to exercise due diligence | Court affirmed dismissal: claim untimely because the facts could have been discovered earlier with due diligence; trial court did not err |
Key Cases Cited
- Dillbeck v. State, 643 So. 2d 1027 (Fla. 1994) (direct appeal affirming convictions and death sentence)
- Dillbeck v. State, 882 So. 2d 969 (Fla. 2004) (postconviction proceedings and remand on initial claims)
- Dillbeck v. State, 964 So. 2d 95 (Fla. 2007) (affirming denial after remand)
- Dillbeck v. State, 168 So. 3d 224 (Fla. 2015) (affirming denial of first successive postconviction motion)
- Dillbeck v. State, 234 So. 3d 558 (Fla.) (affirming denial of second successive motion)
- Jimenez v. State, 997 So. 2d 1056 (Fla. 2008) (successive motion as newly discovered evidence must be filed within one year of when claim became discoverable through due diligence)
- Lebron v. State, 232 So. 3d 942 (Fla. 2017) (discussing recognition/use of qEEG evidence)