WILLIAM GEORGE

v.

STATE OF FLORIDA

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

WILLIAM GEORGE,

Appellant,

v. Case No. 5D19-1047

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed August 23, 2019

3.850 Appeal from the Circuit Court for Orange County, Leticia J. Marques, Judge.

William George, Daytona Beach, pro se.

No Appearance for Appellee.

PER CURIAM.

William George appeals the trial court’s order summarily denying his successive motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand with directions to hold an evidentiary hearing on George’s claim of newly discovered evidence.

In 2009, George entered a no contest plea to manslaughter and two counts of aggravated battery, and was sentenced to thirty years in prison. After an unsuccessful appeal, George v. State, 29 So. 3d 1134 (Fla. 5th DCA 2010), George filed his initial

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motion for postconviction relief. The trial court conducted an evidentiary hearing on several of George’s claims, but ultimately denied the motion, which we affirmed. George v. State, 215 So. 3d 1246 (Fla. 5th DCA 2016). But, pertinent to this case, at the evidentiary hearing on George’s initial postconviction motion, the deceased victim’s mother and brother asked to speak to the court and both explained that someone else, allegedly Nicholas Hughey, had confessed to the crimes and bragged that “someone else is doing his time.” On the basis of those statements, George filed the instant successive motion for postconviction relief, alleging newly discovered evidence. The trial court summarily denied George’s motion, concluding that his claim was not credible because law enforcement had investigated Hughey’s alleged participation in the crime and found no evidence to support it.

In Long v. State, 183 So. 3d 342, 346 (Fla. 2016), the Florida Supreme Court adopted a two-prong test for determining postconviction claims for newly discovered evidence relating to guilty or no contest pleas. 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, he would not have pleaded guilty or no contest and would have insisted on going to trial. Long, 183 So. 3d at 346. “[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

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sentence imposed under the plea and the maximum possible sentence the defendant faced at trial.” Grosvenor v. State, 874 So. 2d 1176, 1181-82 (Fla. 2004). We find George has pled a facially sufficient claim of newly discovered evidence that is not conclusively refuted by the record. Accordingly, we reverse the trial court’s order and remand with directions that the trial court hold an evidentiary hearing.

REVERSED and REMANDED.

ORFINGER, EISNAUGLE and SASSO, JJ., concur.