         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


MARSHALL S. VAUGHAN,

             Appellant,

 v.                                                    Case No. 5D17-316

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed June 23, 2017

3.850 Appeal from the Circuit
Court for Citrus County,
Richard A. Howard, Judge.

Marshall S. Vaughan, Raiford, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Marshall Vaughan appeals the summary denial of his motion for postconviction

relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

      Vaughan pleaded nolo contendere to felony battery and was placed on five years

of drug offender probation. About six months later, Vaughan violated his probation and

was sentenced to ten years in prison.        Vaughan then timely filed a motion for
postconviction relief, asserting, among other things, a claim of newly discovered

evidence.       The postconviction court summarily denied relief, concluding that the

evidence—an affidavit from a recanting witness—was not newly discovered because it

was in Vaughan’s possession after his original plea, but before he pleaded to the violation

of probation.

       Vaughan’s newly discovered evidence claim should have been measured from

when he entered his original plea, not the subsequent violation of probation proceeding.

Thus, we reverse and remand to the postconviction court for further consideration.

       REVERSED and REMANDED for further proceedings.


ORFINGER, LAMBERT and EDWARDS, JJ., concur.




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