Perez v. State

Third District Court of Appeal
State of Florida
Opinion filed February 15, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D14-2530, 3D14-2529, 3D14-2528 & 3D14-2527
Lower Tribunal Nos. 06-10744, 08-24177A, 03-4217B, 01-25930
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Jose Luis Perez,
Appellant,
vs.
The State of Florida,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, Ariana Fajardo
Orshan, Judge.
Quintero Broche and Frank Quintero, Jr., Alejandro Gonzalez Contrera and
Juan P. Broche, for appellant.
Pamela Jo Bondi, Attorney General, and Shayne R. Burnham and Nikole
Hiciano, Assistant Attorneys General, for appellee.
Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
EMAS, J.
Jose Luis Perez challenges the lower court’s order denying his motion to
vacate his plea, judgments and sentences based upon newly-discovered evidence
and upon an alleged Brady1 violation. In his motion, Perez contended that this
newly-discovered evidence supported the defense’s position that law enforcement
illegally entered and seized evidence from his warehouse two days before
obtaining and executing a search warrant of the warehouse. Perez argued that, had
he been in possession of this evidence at the time of the motion to suppress, the
preparation for, and outcome of, that hearing would have been different.
According to Perez, this newly-discovered evidence, and the State’s suppression of
this evidence in violation of Brady, constitutes a “manifest injustice” and,
therefore, he was entitled to a vacatur of his plea, judgments and sentences. The
trial court denied the motion, and this appeal followed.
We do not reach the merits of this claim. Instead, we reverse and remand
this cause for the trial court to reconsider the merits of Perez’s claim utilizing the
standard recently announced by the Florida Supreme Court in Long v. State, 183
So. 3d 342 (Fla. 2016).
In 2014, when the trial court held the evidentiary hearing and rendered its
order, the case law held that a defendant seeking to withdraw or vacate a plea after
sentencing must demonstrate that withdrawal or vacatur of the plea “is necessary to
1 Brady v. Maryland, 373 U.S. 83 (1963).
2
correct a manifest injustice,” Perez v. State, 118 So. 3d 298, 301 (Fla. 3d DCA
2013) (quoting Scott v. State, 629 So. 2d 888, 890 (Fla. 4th DCA 1993)), and that
the defendant “has the burden of demonstrating a manifest injustice through clear
proof of prejudice.” Id. Appropriately, the trial court utilized this then-existing
manifest injustice/clear prejudice standard in its consideration of the motion. The
trial court found Perez failed to meet this standard, and further concluded that,
because “there [had] been no claim of actual innocence in conjunction with the
motion to vacate the plea . . . there is no manifest injustice or prejudice” (quoting
Oce v. State, 742 So. 2d 464, 466 (Fla. 3d DCA 1999)).
However, after the trial court rendered its order in this case, and while this
appeal was pending, the Florida Supreme Court announced a different standard to
be applied by trial courts considering a motion to vacate a plea based upon newly-
discovered evidence.2 In Long, the court began by acknowledging the established
2 Although the trial court properly relied upon the then-existing standard, the
Florida Supreme Court’s announcement of a new rule of law in Long occurred
during the pendency of this appeal. Perez’s case was thus in the pipeline at the
time Long became final, and that controlling precedent applies to our consideration
of this appeal. See, e.g., Pierre v. State, 973 So. 2d 547 (Fla. 5th DCA 2008);
Barthel v. State, 882 So. 2d 1054 (Fla. 2d DCA 2004). See also Castano v. State,
119 So. 3d 1208, 1209-11 (Fla. 2012) (Pariente, J., concurring). This is especially
true where the new rule of law announced in Long (i.e., the appropriate standard to
be used when deciding the merits of a motion to vacate a plea and sentence based
upon newly-discovered evidence) will apply almost exclusively to postconviction
claims.
3
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
{ "pageset": "S56b
defendant really would have gone to trial if
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).
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
4
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 for3 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.
Id. at 346.
Whether Perez has carried his burden of establishing an entitlement to relief
under the standard announced in Long involves mixed questions of fact and law.
3 The Florida Supreme Court uses the “but for” language in similar fashion to the
standard applied to ineffective assistance of counsel claims. It is clear from the
context, however, that this language requires Perez to establish that, had he known
of this newly-discovered evidence prior to the plea, there is a reasonable
probability that he would not have pleaded guilty and would have insisted on going
to trial.
5
We therefore reverse and remand for the trial court to reconsider the merits of
Perez’s claims of newly-discovered evidence under the standard newly-announced
in Long.4 The trial court need not (but may, in its discretion) hold a further
evidentiary hearing or take additional evidence before considering this matter on
remand.
The trial court should determine, pursuant to Long, whether Perez has
established: First, that the newly-discovered evidence was not known by the trial
court, the party, or counsel at the time of the plea, and that the defendant or
defense counsel could not have known of it by the use of diligence.5 Second, that
there is a reasonable probability that, had he known of this newly-discovered
evidence, Perez would not have pleaded guilty and would have insisted on going to
trial.
4 We note that Perez also asserted that the State committed a Brady violation.
However, in this case the alleged Brady violation involves the identical documents
comprising the newly-discovered evidence claim, and the “reasonable probability”
standard adopted in Long for analyzing prejudice in a newly-discovered evidence
claim is the very same standard used to analyze prejudice from an alleged Brady
violation. See White v. State, 664 So. 2d 242, 244 (Fla. 1995) (holding that the
prejudice/materiality prong of Brady requires a defendant to demonstrate that
“there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different”) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)). In light of this, and for ease of
discussion, we have addressed the issue only in the context of newly-discovered
evidence.
5 Although we do not reach the merits, we observe that, from the order on review,
the record on appeal and the parties’ briefs, it would appear to be undisputed that
Perez satisfied this first prong.
6
Reversed and remanded with directions.
7