Perez v. State

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
2
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
3
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.
6