Appeal from the Circuit Court in and for Pinellas County,
Frank Quesada, Judge - Case No. 521985CF007084XXXXNO.
Pinkard, Capital Collateral Regional Counsel, and Chelsea Rae
Shirley, Julissa R. Fontán, and Kara Ottervanger,
Assistant Capital Collateral Regional Counsel, Middle Region,
Temple Terrace, Florida; Seth Miller, Innocence Project of
Florida, Inc., Tallahassee, Florida; Laura Fernandez, New
Haven, Connecticut; and Cyd Oppenheimer, New Haven,
Connecticut, for Appellant.
Moody, Attorney General, Tallahassee, Florida, and Christina
Z. Pacheco, Assistant Attorney General, Tampa, Florida, for
H. Scherker of Greenberg Traurig, P.A., Miami, Florida, and
Karen M. Gottlieb, Florida Center for Capital Representation,
Florida International University College of Law, Miami,
Florida, for Amicus Curiae Right Reverend Neil Lebhar, Bishop
of the Gulf Atlantic Diocese of the Anglican Church in North
Trocino, Director, Miami Law Innocence Clinic, University of
Miami School of Law, Coral Gables, Florida, and Michael
Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee,
Florida, for Amicus Curiae the Innocence Network.
Milton Dailey, a prisoner under sentence of death, appeals
the circuit court's order denying his second successive
motion for postconviction relief, which was filed under
Florida Rule of Criminal Procedure 3.851. We have
jurisdiction. See art. V, § 3(b)(1), Fla.
Const. For the reasons that follow, we affirm.
was convicted of and sentenced to death for the murder of
Shelley Boggio. We have described the facts of the crime as
Shelley Boggio's nude body was found floating in the
water near Indian Rocks Beach in Pinellas County, Florida.
She had been stabbed repeatedly, strangled, and drowned. On
the day of the murder, Shelley, her twin sister Stacey, and
Stephanie Forsythe had been hitchhiking along a road near St.
Petersburg, Florida. They were picked up by Dailey, Jack
Pearcy, and Dwayne "Oza" Shaw. The three men drove
the girls to a local bar. Stacey and Stephanie returned home
shortly thereafter, but Shelley remained with the group and
returned to Jack Pearcy's house. Dailey was living in
Pearcy's home, where he had his own bedroom. Pearcy and
his girlfriend, Gayle Bailey, shared a second bedroom. Shaw,
a friend of Pearcy's from Kansas, was temporarily staying
at Pearcy's house while he resolved marital issues. He
slept on a couch in the living room.
Shaw testified that on the night of the murder he drove with
Pearcy and Boggio to a public telephone booth, where he was
dropped off. Pearcy and Boggio then drove off alone. After
speaking on the phone for several minutes, Shaw returned to
the house on foot and fell asleep on the couch. Shaw
testified that when he woke up later that night, he saw
Pearcy and Dailey, but not Boggio, entering the house
together. Shaw noticed that Dailey's pants were wet.
The State presented testimony from the lead detective in the
case, John Halladay, and three informants who were inmates at
the same facility where Dailey was held while awaiting trial.
One of the inmates, Paul Skalnik, testified that Dailey had
struck a deal with Pearcy, who had also been charged with
Boggio's murder. Skalnik testified that he relayed
messages between Dailey and Pearcy. According to Skalnik,
Dailey promised that if Pearcy did not testify at
Dailey's trial, Dailey would attempt to exonerate Pearcy
once he was acquitted.
Based on the testimony of Shaw, Skalnik, and several other
witnesses, Dailey was found guilty of first-degree murder and
was sentenced to death.
Dailey v. State, 965 So.2d 38, 41-42 (Fla. 2007)
(footnote omitted). On direct appeal, we upheld the
conviction but reversed the sentence. Dailey v.
State, 594 So.2d 254, 259 (Fla. 1991). The trial court
again sentenced Dailey to death on remand. Dailey v.
State, 659 So.2d 246, 247 (Fla. 1995). We affirmed,
id. at 248, and the Supreme Court denied
Dailey's petition for a writ of certiorari, Dailey
v. Florida, 516 U.S. 1095 (1996). Thereafter,
we affirmed the denial of Dailey's initial postconviction
motion and denied his petition for a writ of habeas corpus.
Dailey, 965 So.2d at 41. We also affirmed the denial
of his first successive postconviction motion. Dailey v.
State, 247 So.3d 390, 391 (Fla. 2018).
21, 2017, Dailey filed a second successive postconviction
motion, raising three claims. He asserted that: (1) newly
discovered evidence requires that his conviction be
overturned; (2) the State committed
Brady and Giglioviolations; and
(3) his death sentence is unconstitutional because he is
innocent. Following a case management conference, the circuit
court granted an evidentiary hearing on two newly discovered
evidence claims. Dailey subsequently requested that the court
take judicial notice of certain documents; his request was
the evidentiary hearing, the circuit court issued a final
order rejecting all claims. Dailey now appeals the circuit
court's order and its denial of his request for judicial
Newly Discovered Evidence
first claim, Dailey argues that newly discovered evidence
exists in the form of: (1) an affidavit from Jack Pearcy, his
codefendant; (2) testimony from Mike Sorrentino, James
Wright, and Travis Smith, former inmates who were housed at
the same jail as Dailey; (3) documents indicating that Paul
Skalnik, an inmate who testified on behalf of the State at
trial, is not a credible witness; and (4) an Indian Rocks
Beach Police report.
order to set aside a conviction based on newly discovered
evidence, two requirements must be satisfied. First, the
evidence "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 [of
it] by the use of diligence." Jones v. State,
709 So.2d 512, 521 (Fla. 1998) (alteration in original)
(quoting Torres-Arboleda v. Dugger, 636 So.2d 1321,
1324-25 (Fla. 1994)). Second, the "evidence must be of
such nature that it would probably produce an acquittal on
retrial." Id. However, regardless of whether
the "evidence meets the threshold requirement by