with whom Gibbons, J., agrees, dissenting:
The district court held that respondent Charles Huebler had demonstrated cause and prejudice to excuse the untimely filing of his post-conviction petition for a writ of habeas corpus based on a violation of Brady v. Maryland, 373 U.S. 83 (1963), that made his guilty plea involuntary and that Huebler therefore was entitled to withdraw his guilty plea. The court now concludes that even assuming that the evidence was withheld by the State and is exculpatory (two points that the court does not entirely embrace), Hue-bler failed to demonstrate that the evidence was material and therefore the district court’s order must be reversed. I would conclude that the evidence is exculpatory and was withheld by the State, but then remand for the district court to apply the correct test for materiality (as set forth by the court).
I agree with the court that a Brady claim survives the entry of a guilty plea in that the State has a constitutional duty to disclose material exculpatory information that is within the State’s possession before entering a plea agreement with a defendant. See, e.g., McCann v. Mangialardi, 337 F.3d 782, 787-88 (7th Cir. 2003). I also find no fault in the court’s articulation of the prejudice component of such a Brady claim, that withheld evidence is material if the defendant demonstrates a reasonable probability or possibility (depending on whether there was a specific request for evidence) that but for the failure to disclose the evidence he or she would have refused to plead guilty and would have insisted on going to trial. Where I must part company with my colleagues is in applying the three prongs of a Brady claim to the facts and circumstances presented in this case.
-The starting point is whether the evidence at issue is exculpatory. The court suggests in the margin of its decision that the surveillance videotapes may not be exculpatory because the victim described the lewd acts as occurring underwater and the videotapes do not depict what occurred underwater. I cannot agree with this suggestion that the videotapes are not exculpatory. In my view, the videotapes tend to establish Huebler’s innocence because they show appropriate interactions between an adult and child in a swimming pool and show no conduct or reactions on any individual’s part that would suggest there had been any lewd or lascivious acts involving Huebler and the victim.
The next consideration is whether the State withheld the evidence. The court suggests, again in the margin of its decision, that certain facts in the record would support a conclusion that the evidence could have been uncovered by the defense through diligent investigation. While defense counsel may have been able to contact law enforcement to obtain the videotapes (the police report included the name of the detective who could be contacted with *208questions related to the collection of the videotapes), the duty under Brady is the prosecutor’s, and defense counsel had requested the videotapes and been told that the prosecutor would provide them to defense counsel (albeit at some later unspecified time after they had been provided to the prosecutor). Cf. Jimenez v. State, 112 Nev. 610, 620, 918 P.2d 687, 693 (1996) (“[Ejven if the detectives withheld their reports without the prosecutor’s knowledge, ‘the state attorney is charged with constructive knowledge and possession of evidence withheld by other state agents, such as law enforcement officers.’” (quoting Gorham v. State, 597 So. 2d 782, 784 (Fla. 1992))); see also Allen v. State, 854 So. 2d 1255, 1259 (Fla. 2003) (stating that “[t]he defendant’s duty to exercise due diligence in reviewing Brady material applies only after the State discloses it” and therefore “[o]nce the State obtained the results of the hair analysis, it was required to disclose them to the defendant”).
The final consideration is whether the evidence is material. On this point it is clear that the district court did not apply the correct test for materiality, focusing instead on the impact that the videotapes’ absence had on defense counsel’s “ability to provide a sound defense.” Under the circumstances, I would remand for the district court to apply the correct test in the first instance. In my view, a remand is appropriate because many of the relevant factors involve factual and credibility determinations that should be made by the district court.
In sum, while I applaud the court’s recognition that the State has a constitutional duty to disclose material exculpatory information within its possession before entering a plea agreement with a defendant, I cannot agree with its application of the law to this case. Rather, I agree with the district court that the evidence at issue is exculpatory and was withheld by the State and would remand for the district court to apply the correct test for materiality.
I must also comment on footnote 13 and the discussion preceding footnote 12 in the majority opinion. I have reviewed the transcript of the evidentiary hearing in the court below and the testimony provided at the hearing and it demonstrates both factually and legally why Huebler should have been allowed to withdraw his guilty plea and that the district court was correct in its ruling.
Trial counsel had defended clients charged with misdemeanors for only two weeks, and then began representing clients charged with felonies. She had less than one year of experience when she represented Huebler. This case was the first time counsel had represented a defendant charged with a sexual offense and the first time one of her clients faced a possible life sentence. The record further reveals that Huebler had attempted suicide, was on suicide watch, and was incredibly depressed. Huebler waived a preliminary hearing to plead to one count of lewdness, and the second *209count would be dismissed. Counsel had requested discovery but did not receive either the video surveillance or video recording of Huebler’s interrogation. Counsel knew these videos existed, but had not received them.
Counsel testified at the evidentiary hearing that if she had received these videos, she could have stopped Huebler from entering a plea. Even more enlightening is counsel’s profound revelation that after she finally reviewed the tapes, she would have thrown herself into traffic to prevent Huebler’s guilty plea.
Looking at the totality of circumstances in this contested matter, I would remand this case back to the district court to apply the correct test for materiality and for further hearings on whether Hue-bler can, in fact, show prejudice so that his ineffective assistance claim is not procedurally barred. In light of the Supreme Court’s recent landmark decision emphasizing the importance of the right to effective assistance of counsel during plea bargaining, see Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012), it is imperative that the instant case be remanded to the trial court in order that a finding be made as to whether trial counsel, who allowed a plea to be entered without the benefit of crucial discovery, was ineffective.