FSC on whether the new evidence is of such nature that it would probably produce a life sentence

In the context of a claim regarding newly discovered evidence as to the

penalty phase, the standard for the second prong of Jones is whether the newly

discovered evidence is of such a nature that it would probably produce a life

sentence. See Jones v. State, 591 So. 2d 911, 915 (Fla. 1991) ("[N]ewly

discovered evidence must be of such nature that it would probably produce an

acquittal on retrial. The same standard would be applicable if the issue were

whether a life or a death sentence should have been imposed."); see also Mills v.

State, 786 So. 2d 547, 549-50 (Fla. 2001) (same); Kight v. State, 784 So. 2d 396,

399 (Fla. 2001) (stating that trial court properly denied relief because newly

discovered evidence would probably not have produced a life sentence during a

new penalty phase).

In determining whether the second prong of the Jones standard has been.-18-

satisfied in postconviction proceedings, we have explained the proper analytical

framework for the court to employ:

To reach this conclusion the trial court is required to "consider

all newly discovered evidence which would be admissible" at trial and

then evaluate the "weight of both the newly discovered evidence and

the evidence which was introduced at the trial."

In considering the second prong, the trial court should initially

consider whether the evidence would have been admissible at trial or

whether there would have been any evidentiary bars to its admissibility.

Once this is determined, an evaluation of the weight to be accorded

the evidence includes whether the evidence goes to the merits of the

case or whether it constitutes impeachment evidence. The trial court

should also determine whether the evidence is cumulative to other

evidence in the case. The trial court should further consider the

materiality and relevance of the evidence and any inconsistencies in the

newly discovered evidence. Where, as in this case, some of the newly

discovered evidence includes the testimony of individuals who claim

to be witnesses to events that occurred at the time of the crime, the

trial court may consider both the length of the delay and the reason the

witness failed to come forward sooner.

Jones, 709 So. 2d at 521-22 (citations omitted); see also Kight, 784 So. 2d at 401-

03 (analyzing probable impact of newly discovered evidence on penalty phase

under second prong of Jones in successive postconviction motion).