# Third District Court of Appeal

State of Florida

Opinion filed March 7, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D16-2874

Lower Tribunal No. 97-18752

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### Edelio Perez

, Appellant,

vs.



### The State of Florida

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Nushin G.

Sayfie

, Judge.

Law Offices of Matthew Troccoli, P.A., and Matthew J. Troccoli, for

appellant.

Pamela Jo Bondi, Attorney General, and G. Raemy Charest-Turken

, Assistant Attorney General, for appellee.

Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.

PER CURIAM.Edelio Perez appeals from the trial court’s order denying his motion for

postconviction relief. We reverse and remand for reconsideration of Perez’s

motion in light of the standard established by the Florida Supreme Court in Long

v. State

, 183 So. 3d 342 (Fla. 2016).

In 1997, Perez was charged in a two-count information with committing a

lewd and lascivious act upon each of his two stepdaughters (who were six and

seven years old at the time). In 1998, pursuant to a negotiated plea, Perez pleaded

nolo contendere to the charges and, in exchange for his plea, was placed on ten

years’ probation with early termination after five years. Perez successfully

completed his probation.

In 2015, Perez filed a motion for postconviction relief. In that motion, Perez

sought to set aside his judgment and sentence and withdraw his previously-entered

plea, based upon newly-discovered evidence. The newly-discovered evidence

consisted of affidavits from the two victims in which each of them averred that

they lied when they accused Perez of molesting them, and recanted their prior

statements and testimony against Perez. The State filed a response to Perez’s

motion and, in advance of an evidentiary hearing, deposed each of the

stepdaughters.

The trial court held an evidentiary hearing. At the hearing, both

stepdaughters testified, as did the forensic interviewer who conducted the

2videotaped interview of the stepdaughters when the incidents were initially

reported. The videotapes of those interviews were also introduced in evidence and

viewed by the trial court.

On November 22, 2016, following the evidentiary hearing, the trial court

denied the motion, applying the standard enunciated in Holloway v. State

, 160 So.

3d 149 (Fla. 3d DCA 2015). In Holloway

, we followed an earlier decision of our

sister court and held that a defendant seeking to withdraw a plea based upon

newly-discovered evidence must establish that:

(1) the evidence was unknown to the defendant, his trial counsel, and

the trial court within the two-year rule 3.850 window; (2) the evidence

could not have been discovered by the use of due diligence; and (3)

withdrawal of the plea is necessary to correct a manifest injustice.

Id. at 151 (quoting Scott v. State

, 629 So. 2d 888, 890 (Fla. 4th DCA 1993))

(emphasis added).

The trial court, applying this standard, determined that Perez had met the

first two prongs, but had failed to satisfy the third prong, concluding in its order of

denial that Perez “has not demonstrated a manifest injustice based on actual

innocence.”

However, the standard we adopted in Holloway has been supplanted by the

Florida Supreme Court’s subsequent decision in Long

, 183 So. 3d at 345-46, 1

1 The Florida Supreme Court issued Long on January 21, 2016, after Perez’s

motion and the State’s response had been filed, but prior to the evidentiary hearing.

From the record provided, it does not appear that either party alerted the trial court

3which announced the applicable standard for considering a motion to vacate a plea

based upon newly-discovered evidence. We noted this change in the law in our

recent decision in Perez v. State

, 212 So. 3d 469, 470-72 (Fla. 3d DCA 2017):

In Long

, the Court began by acknowledging the established

standard for a motion to vacate a plea, judgment and sentence based

upon a claim of ineffective assistance of counsel :

We have addressed the vacation of a judgment and

sentence on postconviction relief where the defendant has

entered a guilty plea within the context of ineffective

assistance of counsel. See Grosvenor v. State

, 874 So.2d

1176 (Fla.2004). In Grosvenor

, we established a twoprong test for determining claims of ineffective

assistance of counsel relating to guilty pleas. The first

prong is identical to the deficient performance prongs in

Strickland v. Washington

, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), and Hill v. Lockhart

, 474 U.S.

52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The defendant

must specifically identify acts or omissions of counsel

that were manifestly outside the wide range of reasonably

competent performance under prevailing professional

norms. As for the second prong, we held that a defendant

must demonstrate “a reasonable probability that, but for

counsel's errors, the defendant would not have pleaded

guilty and would have insisted on going to trial.”

Grosvenor

, 874 So.2d at 1181. The defendant does not

have to show that he actually would have prevailed at

trial, but the strength of the government's case against the

defendant should be considered in evaluating whether the

trial if defendant really would have gone to he had

received adequate advice from his counsel. Id. “Counsel's

effectiveness is determined according to the totality of

the circumstances.” Id. (citing Strickland

, 466 U.S. at

690, 104 S.Ct. 2052).

to the Long decision or the change in the applicable standard.

4Long

, 183 So.3d at 345

– 46. (Citations omitted).

Borrowing heavily from this hybrid standard utilized in a

motion to vacate plea based on ineffective assistance of counsel, the

Court held that a similar standard should apply where the motion to

vacate judgment and sentence following a plea is based upon newlydiscovered evidence:

We likewise establish a similar two-prong test for

determining postconviction claims for newly discovered

evidence relating to guilty pleas which adopts the first

prong of the Jones test and the second prong from

Grosvenor

. First, the evidence must not have been known

by the trial court, the party, or counsel at the time of the

plea, and it must appear that the defendant or defense

counsel could not have known of it by the use of

diligence. Second, the defendant must demonstrate a

reasonable probability that, but for the newly discovered

evidence, the defendant would not have pleaded guilty

and would have insisted on going to trial. “[I]n

determining whether a reasonable probability exists that

the defendant would have insisted on going to trial, a

court should consider the totality of the circumstances

surrounding the plea, including such factors as whether a

particular defense was likely to succeed at trial, the

colloquy between the defendant and the trial court at the

time of the plea, and the difference between the sentence

imposed under the plea and the maximum possible

sentence the defendant faced at a trial.” Grosvenor

, 874

So.2d at 1181

– 82.

We therefore reverse the trial court’s order and remand for the trial court to

reconsider the merits of Perez's claim under the standard announced in Long

. 2

2 In our earlier Perez decision, we noted that Long was issued after the evidentiary

hearing and after the trial court entered its order. Given those circumstances, our

instructions on remand permitted the trial court, in its discretion, to “hold a further

evidentiary hearing or take additional evidence before considering this matter on

remand.” Perez

, 212 So. 3d at 472. In the instant case, by contrast, the Long

5REVERSED AND REMANDED.

decision was issued nine months prior to the evidentiary hearing. The parties are

charged with knowledge of the then-existing legal standard at the time of the

hearing and are not entitled to a second bite of the evidentiary apple on remand.

6