Gary Richard Whitton v. State of Florida

Supreme Court of Florida
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No. SC2025-1357
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GARY RICHARD WHITTON,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

June 18, 2026

COURIEL, J.

Gary Richard Whitton, a prisoner under sentence of death,

challenges the circuit court’s order denying his second successive

motion for postconviction relief filed under Florida Rule of Criminal

Procedure 3.851. Three decades after his conviction, Whitton

claims that a jailhouse informant’s testimony during Whitton’s

federal habeas proceeding reveals newly discovered evidence of

prosecutorial misconduct during Whitton’s murder trial. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const.; see also State v.

Fourth Dist. Ct. of Appeal, 697 So. 2d 70, 71 (Fla. 1997) (holding
“that in addition to our appellate jurisdiction over sentences of

death, we have exclusive jurisdiction to review all types of collateral

proceedings in death penalty cases”). As explained below, we

affirm.

I

In 1992, a jury found Gary Richard Whitton guilty of the

robbery and first-degree murder of James S. Mauldin. 1 Whitton v.

State (Whitton I), 649 So. 2d 861, 864 (Fla. 1994). We recounted the

facts of his crimes in his direct appeal. Id. at 862-64. What is

primarily relevant to this appeal is that, during Whitton’s murder

trial, the State presented evidence that while Whitton was

incarcerated and awaiting trial, he confessed to a cellmate, Kenneth

McCullough, 2 that he killed James. A third cellmate, Jake Ozio,

1. We referred to the victim as “Mauldin” in Whitton’s direct
appeal, but Whitton and the federal courts referred to the victim as
“Maulden” during Whitton’s federal habeas proceeding. See Whitton
v. Sec’y, Fla. Dep’t of Corr. (Whitton III), No. 23-10786, 2025 WL
1305158, at *1 n.3 (11th Cir. May 6, 2025), vacated on other
grounds sub nom., Whitton v. Dixon, No. 25-580, 2026 WL 1513270
(U.S. June 1, 2026). Here, we use the victim’s first name, James.

2. We spelled this inmate’s last name as “McCollough” in
Whitton’s initial postconviction proceeding. See Whitton v. State
(Whitton II), 161 So. 3d 314, 322-23 (Fla. 2014). But Whitton and

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testified that he overheard this confession. Whitton I, 649 So. 2d at

863-64. The jury unanimously recommended the death sentence,

and the trial judge sentenced Whitton to death. Id. at 864. We

affirmed. Id. at 862. And on October 2, 1995, the United States

Supreme Court denied Whitton’s petition for certiorari review.

Whitton v. Florida, 516 U.S. 832 (1995).

In the last three decades, Whitton made several unsuccessful

attempts to obtain postconviction relief in state court. See

Whitton II, 161 So. 3d 314 (affirming the denial of Whitton’s initial

motion for postconviction relief and denying his habeas petition);

Whitton v. State, 238 So. 3d 724 (Fla. 2018) (affirming the denial of

Whitton’s first successive postconviction motion seeking relief

under Hurst v. State, 202 So. 3d 40 (Fla. 2016)); see also Whitton v.

State, 824 So. 2d 171 (Fla. 2002) (table) (denying petition for writ of

mandamus); Whitton v. State, 838 So. 2d 560 (Fla. 2003) (table)

(dismissing an appeal from a nonfinal order).

During Whitton’s initial postconviction proceeding, he argued

that Ozio falsely testified about overhearing Whitton’s confession

the federal courts spelled it as “McCullough.” See Whitton III, 2025
WL 1305158, at *2 n.4.

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and that the State knew Ozio’s testimony was false. See Whitton II,

161 So. 3d at 322, 323-24. In putting on that testimony, Whitton

said, the State violated the command of Giglio v. United States, 405

U.S. 150 (1972), and Brady v. Maryland, 373 U.S. 83 (1963).3

Whitton II, 161 So. 3d at 322. 4 We found Whitton had failed to

demonstrate that Ozio’s testimony was false, as Ozio refused to

testify at the postconviction court’s evidentiary hearing. Id. at 323.

Another problem for Whitton was that he had not admitted into

evidence Ozio’s affidavit recanting his trial testimony. Id. We also

found that, even if Ozio’s trial testimony was false, Whitton had

failed to demonstrate that the State was aware Ozio intended to

present false testimony. Id. at 324.

3. Giglio forbids the State “from knowingly presenting false
testimony against the defendant.” Hurst v. State, 18 So. 3d 975,
991 (Fla. 2009). Brady requires the State “to disclose material
information within its possession or control that is favorable to the
defense.” Taylor v. State, 62 So. 3d 1101, 1114 (Fla. 2011).

4. Whitton also raised Giglio and Brady claims related to
cellmate McCullough’s testimony. See Whitton II, 161 So. 3d at
322-23. McCullough passed away before Whitton’s postconviction
proceeding, but we found that Whitton had failed to demonstrate
McCullough’s testimony was false or that the State knew it was
false. Id.

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Whitton also sought federal habeas relief, raising similar Giglio

claims. See Whitton III, 2025 WL 1305158, at *1. Relevant to this

appeal, the federal district court allowed Whitton to obtain Ozio’s

deposition, which was taken on May 17, 2021, and during which

Ozio recanted his trial testimony. At that deposition and at a

federal evidentiary hearing on September 27, 2022, Ozio testified

that he never actually overheard Whitton confess, that he believed

he would receive a benefit for testifying against Whitton, and that

he lied at trial about not having a prior criminal record. Id. at *6-7.

Ozio, however, acknowledged that he had no evidence that the State

knew his testimony against Whitton was false. The federal district

court denied relief, finding Whitton had failed to raise a material

Giglio claim. Id. at *7. The United States Court of Appeals for the

Eleventh Circuit affirmed. Id. at *1. The United States Supreme

Court vacated the Eleventh Circuit’s judgment and remanded the

case for further proceedings, determining that the Eleventh Circuit

“should not have considered” certain post-trial evidence in its

decision. Whitton v. Dixon, 2026 WL 1513270, at *2.

On July 7, 2023, Whitton filed this second successive motion

for postconviction relief. In it, he raised three claims: (1) newly

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discovered evidence from Ozio’s federal testimony demonstrates

that his testimony at Whitton’s murder trial was false, (2) the State

violated Giglio because of this false testimony, and (3) the State

violated Brady for not disclosing evidence related to this false

testimony. The circuit court summarily denied all three claims as

untimely and procedurally barred. This appeal follows.

II

The circuit court did not err in finding Whitton’s second

successive postconviction claims untimely and procedurally barred.

We review summary denials of successive postconviction claims de

novo. See Suggs v. State, 421 So. 3d 410, 415 n.2 (Fla. 2025),

petition for cert. filed, No. 25-7416 (U.S. May 19, 2026). 5

5. As a preliminary matter, Whitton argues that the circuit
court failed to hold a case management conference pursuant to Huff
v. State, 622 So. 2d 982 (Fla. 1993), and as required by rule
3.851(f)(5)(B). In Huff, we held that courts considering initial
postconviction motions for capital defendants must hold a hearing
at which legal arguments can be made prior to ruling on the
motion. Id. at 983. Rule 3.851(f)(5)(B) requires these hearings for
successive postconviction motions within thirty days of the State’s
answer. Here, the circuit court dispensed with a case management
conference before summarily denying Whitton’s motion. It was
error for the circuit court to sidestep rule 3.851(f)(5)(B) at the
State’s urging. See Sparre v. State, 426 So. 3d 1247, 1250 n.6 (Fla.
2025), petition for cert. filed, No. 25-7292 (U.S. Apr. 30, 2026). But
we have held that “any error in failing to hold a Huff hearing on a

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We have said that “[g]enerally, postconviction claims in capital

cases are untimely if filed more than a year after the judgment and

sentence became final.” Mungin v. State, 320 So. 3d 624, 625 (Fla.

2020) (citing Fla. R. Crim. P. 3.851(d)). “For an otherwise untimely

claim to be considered timely as newly discovered evidence, it must

be filed within a year of the date the claim became discoverable

through due diligence.” Id. at 625-26 (quoting Reed v. State, 116

So. 3d 260, 264 (Fla. 2013)). “It is incumbent upon the defendant

to establish the timeliness of a successive postconviction claim.” Id.

(citing Rivera v. State, 187 So. 3d 822, 832 (Fla. 2015)). And to

establish that a claim is timely raised, a defendant must “credibly

offer[] the date on which his claims became discoverable.” Damren

v. State, 397 So. 3d 607, 613 (Fla. 2023).

Whitton’s claims are untimely. His judgment became final, for

the purpose of the limitation period, in 1995—over thirty years ago.

successive postconviction motion is harmless if the motion is legally
insufficient to warrant . . . relief.” Boyd v. State, 324 So. 3d 908,
913 (Fla. 2021) (citing Taylor v. State, 260 So. 3d 151, 157-58 (Fla.
2018)). Because Whitton’s second successive postconviction motion
is without merit, we find the circuit court’s failure to hold a case
management conference was harmless.

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And Whitton’s Ozio-related claims became discoverable through due

diligence more than a year before Whitton filed this second

successive postconviction motion.

Whitton has known about Ozio’s alleged cooperation with the

State since at least 2000, when Whitton obtained Ozio’s recantation

affidavit. See Whitton III, 2025 WL 1305158, at *4. Any alleged new

information on which to base an Ozio-related newly discovered

Giglio or Brady claim has been discoverable since at least then. See

Suggs, 421 So. 3d at 418 (finding newly discovered evidence claim

untimely because the defendant became aware of the witness with

allegedly new information twenty years earlier); Stein v. State, 406

So. 3d 171, 174-75 (Fla. 2024) (finding successive postconviction

Brady claim untimely when the witnesses with allegedly new

information were known to the defendant since trial); Mungin, 320

So. 3d at 626 (finding the recantation on which the defendant based

his successive postconviction claims was discoverable more than a

year before his successive postconviction motion was filed because

the recanting witness was known and available to the defendant

since trial). Whitton knew of Ozio’s allegedly false testimony years

before this motion but now claims that Ozio’s testimony during

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Whitton’s federal habeas proceeding sheds new light on its falsity.

But “previously known evidence does not become newly discovered

every time a new detail emerges,” let alone each time it is repeated.

Suggs, 421 So. 3d at 417 (citing Dailey v. State, 329 So. 3d 1280,

1287-88 (Fla. 2021)).

Moreover, Whitton’s counsel deposed Ozio for his federal

habeas proceeding on May 17, 2021. Even if the underlying

information on which Whitton bases his instant Ozio-related claims

truly became discoverable then, Whitton filed this motion on July 7,

2023—more than two years later. So it is untimely. Whitton’s

contrary argument—that his clock should have started running in

September 2022 (Ozio’s federal evidentiary hearing testimony)—is

without merit. This Court recognizes evidence as new when it

becomes discoverable through due diligence, not when the

information is later testified about in court. See Mungin, 320 So. 3d

at 625-26.

Whitton’s instant claims are also procedurally barred. “Claims

raised and rejected in prior postconviction proceedings are

procedurally barred from being relitigated in a successive motion.”

Reynolds v. State, 373 So. 3d 1124, 1126 (Fla. 2023) (quoting

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Hendrix v. State, 136 So. 3d 1122, 1125 (Fla. 2014)); see also

Barwick v. State, 361 So. 3d 785, 792 (Fla. 2023) (affirming the

denial of a claim as procedurally barred because variations of it

were raised in prior proceedings). Whitton raised Ozio-related Giglio

and Brady claims in his initial postconviction proceeding, and we

rejected them. See Whitton II, 161 So. 3d at 322-24. Whitton now

contends he can better support these claims or raise new variations

of them with new information obtained from his federal habeas

proceeding. But Whitton “cannot overcome a procedural bar by

simply alleging new support for old claims.” Suggs, 421 So. 3d at

418. And to the extent that any Giglio or Brady claims predicated

on Ozio’s alleged false testimony had not yet been fully litigated

prior to this successive motion, such claims are procedurally barred

because they could have been raised in prior proceedings as we

discussed above. See Sparre v. State, 391 So. 3d 404, 406 n.5 (Fla.

2024).

Whitton asserts that the State thwarted his previous efforts to

raise Ozio-related claims because it “threatened” Ozio with perjury

charges if he testified differently at Whitton’s initial postconviction

evidentiary hearing than he did at Whitton’s trial. We reject this

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argument. In Johnson v. State, 397 So. 3d 626, 639 (Fla. 2024), we

found that a witness was not threatened when a prosecutor made

the witness aware of the risk of criminal liability if he elected to

change his earlier sworn testimony, and the witness chose not to

testify differently after consulting independent counsel. Similarly

here, Ozio chose not to testify at Whitton’s initial postconviction

evidentiary hearing after being made aware of the risk of criminal

liability for perjury and receiving the advice of independent counsel.

See Whitton III, 2025 WL 1305158, at *4. Thus, “Ozio refused to

testify” at Whitton’s initial postconviction proceeding, and the

claims Whitton raised in that proceeding are now procedurally

barred. Whitton II, 161 So. 3d at 323.

The circuit court did not err in summarily denying Whitton’s

second successive motion for postconviction relief on timeliness and

procedural grounds. 6

III

For these reasons, we affirm the order summarily denying

6. Because Whitton’s claims are untimely and procedurally
barred, we need not reach the merits of the motion. See Mungin,
320 So. 3d at 626 n.4 (“Because [the appellant’s] claims were
procedurally barred, they were properly denied . . . .”).

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Whitton’s second successive postconviction motion.

It is so ordered.

MUÑIZ, C.J., and LABARGA, GROSSHANS, FRANCIS, SASSO,
and TANENBAUM, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Walton County,
Jeffrey E. Lewis, Judge
Case No. 661990CF000429CFAXMX

Mark E. Olive of Law Offices of Mark E. Olive, P.A., Tallahassee,
Florida,

for Appellant

James Uthmeier, Attorney General, and Jason W. Rodriguez, Senior
Assistant Attorney General, Tallahassee, Florida,

for Appellee

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