      Third District Court of Appeal
                               State of Florida

                           Opinion filed March 7, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2874
                         Lower Tribunal No. 97-18752
                             ________________


                                 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



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videotaped 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

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which 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 two-
            prong 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.

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             Long, 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 newly-
      discovered 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

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      REVERSED 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.

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