Jeremiah M. RODGERS, Appellant,
STATE of Florida, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Appeal from the Circuit Court in and for Santa Rosa County,
John Franklin Simon, Jr., Judge - Case No.
L. Backhus , Chief, and Kimberly Sharkey , Attorney, Capital
Habeas Unit, Office of the Federal Public Defender, Northern
District of Florida, Tallahassee, Florida, for Appellant.
Moody , Attorney General, and Charmaine M. Millsaps , Senior
Assistant Attorney General, Tallahassee, Florida, for
M. Rodgers, a prisoner under sentence of death, who now goes
by the name Jenna Rodgers, appeals the circuit court's
summary denial of a successive postconviction motion filed
pursuant to Florida Rule of Criminal Procedure 3.851. We have
jurisdiction. See art. V, § 3(b)(1), Fla.
Const. Although Rodgers previously waived postconviction
proceedings and counsel and this Court affirmed the validity
of the waiver on appeal, Rodgers now argues that a diagnosis
of gender dysphoria is newly discovered evidence that Rodgers
was incompetent to plead guilty to first-degree murder,
see Rodgers v. State (Rodgers I), 934 So.2d 1207
(Fla. 2006), to waive a penalty phase jury, see Rodgers
v. State (Rodgers II), 3 So.3d 1127 (Fla. 2009), and to
waive postconviction proceedings and counsel, Rodgers v.
State (Rodgers III), No. SC11-1401, 104 So.3d 1087, 2012
WL 5381782 (Fla. Oct. 17, 2012) (unpublished), thereby
invalidating this Court's prior decision affirming the
denial of Hurst relief based on Rodgers' waiver
of a penalty phase jury, see Rodgers v. State (Rodgers
IV), 242 So.3d 276 (Fla. 2018). The circuit court found
Rodgers' motion untimely and summarily denied it. We
agree and affirm.
be considered timely filed as newly discovered evidence, the
successive rule 3.851 motion was required to have been filed
within one year of the date upon which the claim became
discoverable through due diligence." Jimenez v.
State, 997 So.2d 1056, 1064 (Fla. 2008); see
also Fla. R. Crim. P. 3.851(d)(1)-(2). It was not.
Rather, the record shows that Rodgers knew of the gender
dysphoria diagnosis at some point between a February 26,
2016, evaluation by a psychiatrist and the filing of the
January 11, 2017, successive postconviction motion at issue
in Rodgers IV, in which Rodgers argued that gender
dysphoria rendered Rodgers incompetent to enter prior
waivers, including the penalty phase jury waiver that we
held, in Rodgers IV, precludes Hurst
relief. Yet, Rodgers "d[id] not raise ... gender
dysphoria as a claim of newly discovered evidence or
ineffective assistance of counsel" in that proceeding.
Rodgers IV, 242 So.3d at 279 (Pariente, J.,
concurring in result). Thus, the December 4, 2018, successive
postconviction motion at issue in this appeal—in which
Rodgers alleged that gender dysphoria is newly discovered
evidence of incompetency at the time of the guilty plea and
even without the time bar, the summary denial was proper
because the evidence at issue is not newly discovered.
Generally, to prevail on a newly discovered evidence claim,
two requirements must be met: "(1) the evidence must not
have been known by the trial court, the party, or counsel at
the time of trial, and it must appear that the defendant or
defense counsel could not have known of it by the use of
diligence; and (2) the newly discovered evidence must be of
such a nature that it would probably produce an acquittal on
retrial." Reed v. State, 116 So.3d 260, 264
(Fla. 2013) (citing Jones v. State (Jones II), 709
So.2d 512, 521 (Fla. 1998)).
Rodgers' case, the first prong of Jones II ends
detailed in Justice Pariente's concurring in result
opinion in Rodgers IV, the record conclusively
establishes that Rodgers' symptoms that are now
attributed to gender dysphoria (e.g., severe depression,
self-mutilation, reported suicidality) were known to the
courts that accepted and affirmed the validity of
Rodgers' plea and waivers. See Rodgers IV, 242
So.3d at 277 (Pariente, J., concurring in result)
("[B]oth the trial court and this Court were aware of
Rodgers' long history of mental illness in determining
Rodgers' competency to make the waivers and in reviewing
Rodgers' waivers, respectively...."); see also
id. at 278-80 (detailing the "record indicating
severe mental illness" in Rodgers' case). The
medical community's subsequent assignment of a name to
the cause of known symptoms is not newly discovered evidence,
but even assuming that it could be, the record conclusively
establishes that Rodgers failed to diligently pursue this
claim. As explained above, Rodgers became aware of the gender
dysphoria diagnosis at some point between February 2016 and
January 2017 and alleged that gender dysphoria caused
incompetency in a January 2017 successive postconviction
motion, but waited until December 2018 to raise a newly
discovered evidence claim predicated upon gender dysphoria.
This falls short of the due diligence that Jones II
because Rodgers' motion is time-barred and, in any event,
not based upon newly discovered evidence, we affirm the
circuit court's summary denial. In so doing, we note that
because Rodgers validly waived postconviction proceedings and
counsel, future filings should not be made on Rodgers'
behalf in the circuit court without first seeking leave from
the circuit court and explaining how the appointment of
counsel and the proposed filing are authorized in light of
Rodgers' valid waiver.
C.J., and POLSTON, LABARGA, LAWSON, LAGOA, and ...