Opinion
No. 81-726.
October 28, 1981.
Appeal from the Circuit Court, Palm Beach County, Robert S. Hewitt, J.
Marjorie D. Gadarian of Jones Foster, P.A., West Palm Beach, for appellant.
Jeffrey Leibovit of Montgomery, Lytal, Reiter, Denney Searcy, P.A., West Palm Beach, for appellees.
This is an interlocutory appeal from the grant of a motion made pursuant to Rule of Civil Procedure 1.540(b). We have jurisdiction pursuant to Rule of Appellate Procedure 9.130(a)(5). The present civil action is a suit by plaintiff/appellee against Florida Power and Light Company, among others, for the alleged wrongful death of his wife. Plaintiff moved to vacate a prior summary judgment entered in favor of Florida Power and Light Company. The motion to vacate was based upon newly discovered evidence which allegedly could not have been discovered by due diligence in a more timely fashion. The motion to vacate pursuant to Rule of Civil Procedure 1.540(b) was filed almost nine months after the defendant's summary judgment. The newly discovered evidence alleged in the motion to vacate constituted testimony given by a witness in a prior criminal trial where the plaintiff had been prosecuted for the alleged murder of his wife. Plaintiff asserts that the testimony at his own prior criminal trial was not subject to his own discovery because he did not secure a transcript of that testimony at the time. We conclude that the trial court erred in setting aside the prior summary judgment. Evidence at one's own criminal trial growing out of an incident forming the basis for a related civil suit cannot, under the circumstances of this case, be considered newly discovered. See Kash N'Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969). The order below is reversed and the cause remanded for further proceedings which shall include reinstatement of the prior summary judgment.
LETTS, C.J., and HERSEY, J., concur.