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
                             ________________


                               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, 

(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, 

(1963).

                                          2
correct a manifest injustice,” Perez v. State, 

, 301 (Fla. 3d DCA

2013) (quoting Scott v. State, 

, 890 (Fla. 4th DCA 1993)), and that

the defendant “has the burden of demonstrating a manifest injustice through clear

proof of prejudice.” 

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, 

, 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, 

(Fla. 5th DCA 2008);
Barthel v. State, 

(Fla. 2d DCA 2004). See also Castano v. State,

, 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, 

(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, 

, 

,
             

(1984), and Hill v. Lockhart, 

, 

, 

(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.” 

. 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. 

is determined according to the
             totality of the circumstances.” 

466
             U.S. at 690, 

).

. (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.” 

–82.

      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, 

, 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, 

, 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.




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