Bing v. State of Florida

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
No. 1D2025-2592
_____________________________
D ARREN B ING,
Appellant,
v.
STATE OF FLORIDA ,
Appellee.
_____________________________
On appeal from the Circuit Court for Alachua County.
James Matthew Colaw, Judge.
May 13, 2026
N EFF , J.
On July 1, 2025, Darren Bing filed a successive motion for
postconviction 	relief 	alleging 	newly 	discovered 	evidence. 	The
alleged 	newly 	discovered 	evidence 	is 	a 	notarized 	recantation
affidavit from trial witness Lamont Ritter. Ritter testified at trial
that Bing confessed to him in jail that Bing had been paid to
commit the murder of William Redd. In the notarized affidavit,
Ritter recants that trial testimony. According to Bing’s motion, he
became aware of Ritter’s recantation on June 5, 2025. Thus, the
motion filed July 1, 2025, was timely under Rule 3.850(b)(1), Fla.
R. 	Crim. 	P. 	The 	trial 	court 	denied 	the 	motion 	without 	an
evidentiary hearing, finding that Ritter’s testimony was not a
substantial part of the State’s case and that even if Ritter did not
testify, there was still overwhelming evidence of Bing’s guilt.

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“‘The standard of review of a summary denial of a rule 3.850
motion is de novo.’” Morris v. State, 275 So. 3d 230, 234 (Fla. 1st
DCA 2019) (quoting McLin v. State, 827 So. 2d 948, 954 (Fla.
2002)). A summary denial of a Rule 3.850 motion is upheld only if
the motion is legally insufficient or its allegations are conclusively
refuted by the record. Taylor v. State, 3 So. 3d 986, 999 (Fla. 2009)
(citing McLin, 827 So. 2d at 954). All factual allegations in a Rule
3.850 motion not refuted by the record are accepted as true. Taylor
v. State, 260 So. 3d 151, 158-59 (Fla. 2018). “Once it has been
determined that the defendant properly alleged the existence of
newly-discovered evidence, an evidentiary hearing is ordinarily
required so the trial court may properly weigh and evaluate both
the 	newly-discovered 	evidence 	and 	the 	evidence 	which 	was
introduced at the trial.” John v. State, 98 So. 3d 1257, 1259 (Fla.
3d DCA 2012). A hearing may be dispensed with only if the
affidavit is inherently incredible or obviously immaterial to the
verdict. Davis v. State, 26 So. 3d 519, 526 (Fla. 2009).
The trial court’s order attached three categories of material:
portions of Demaria Watts’s direct examination, Lamont Ritter’s
trial testimony, and extensive excerpts from the State’s closing
arguments. 	However, 	closing 	argument 	is 	not 	evidence; 	it 	is
advocacy. A party’s characterization of the evidence is not the
evidence itself. Braddy v. State, 111 So. 3d 810, 843 (Fla. 2012)
(noting 	the 	“trial 	court 	properly 	instructed 	the 	jury 	that
statements 	made 	during 	closing 	argument 	did 	not 	constitute
evidence”); Fla. Std. Jury Instr. (Crim.) 2.7 (“Please remember that
what the attorneys say is not evidence or your instruction on the
law. However, do listen closely to their arguments. They are
intended to aid you in understanding the case.”). Generally, closing
argument is not among the files and records that may conclusively
refute this type of postconviction claim. See Anderson v. State, 627
So. 2d 1170, 1171 (Fla. 1993) (“This Court has stated many times
that under rule 3.850, a movant is entitled to an evidentiary
hearing unless the motion, files, and records conclusively show
that the movant is not entitled to relief.”). These closing argument
excerpts therefore cannot demonstrate that the alleged newly
discovered evidence is obviously immaterial to the verdict.

3
The 	remaining 	attachments 	fare 	no 	better. 	The 	Watts
attachment consists solely of direct examination, omitting the
cross-examination necessary to assess whether his testimony was
sufficiently 	unchallenged 	to 	render 	the 	recantation 	obviously
immaterial to the verdict. Although the Ritter attachment includes
cross-examination, 	it 	includes 	statements 	in 	which 	Ritter
acknowledged he could not remember specifically what Bing told
him and could not distinguish what Bing said from what he
learned from other sources—the very uncertainty that makes a
hearing necessary.
Neither 	is 	the 	recantation 	made 	by 	Ritter 	inherently
incredible on its face. See Lazo v. State, 419 So. 3d 1097, 1100 (Fla.
4th DCA 2025) (“[A]n affidavit is deemed inherently incredible
when its content is so implausible that the affidavit cannot be
believed, 	and 	further 	examination 	is 	not 	needed.”). 	Ritter’s
affidavit, which is notarized and addressed to the presiding judge,
is consistent with his own cross-examination testimony that Bing
was paranoid and did not trust other inmates. Moreover, Ritter’s
testimony was the only direct evidence of guilt—the only evidence
purporting to be Bing’s own words acknowledging culpability. The
trial 	court’s 	determination 	that 	this 	testimony 	was 	not 	a
substantial 	part 	of 	the 	State’s 	case 	is 	precisely 	the 	kind 	of
credibility and materiality weighing that Florida law ordinarily
reserves for an evidentiary hearing. McLin v. State, 827 So. 2d 948,
955 (Fla. 2002); see also Robinson v. State, 736 So. 2d 93, 93 (Fla.
4th DCA 1999) (“After conducting the same review, we cannot
conclude that [the witness]’s affidavit was inherently incredible or
that his trial testimony was obviously immaterial to the verdict, so
as to allow the trial court to reject his recantation without holding
an evidentiary hearing.”).
We 	therefore 	reverse 	the 	order 	of 	summary 	denial. 	On
remand, 	the 	trial 	court 	shall 	either 	attach 	record 	evidence
conclusively 	demonstrating 	the 	recantation 	to 	be 	obviously
immaterial to the verdict or conduct an evidentiary hearing at
which it may properly assess the credibility of Ritter’s recantation
and, 	if 	credited, 	determine 	whether 	the 	recanted 	testimony,
weighed against all evidence presented at trial, would probably
produce an acquittal on retrial. Jones v. State, 709 So. 2d 512, 521–
22 (Fla. 1998).

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R EVERSED and R EMANDED.
ROBERTS and M.K. THOMAS, JJ., concur.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Darren Bing, pro se, Appellant.
James Uthmeier, Attorney General, and Anne Catherine Conley,
Assistant Attorney General, Tallahassee, for Appellee.