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
MARSHALL S. VAUGHAN,
Appellant,
v. Case No. 5D17-316
STATE OF FLORIDA,
Appellee.
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Opinion filed June 23, 2017
3.850 Appeal from the Circuit
Court for Citrus County,
Richard A. Howard, Judge.
Marshall S. Vaughan, Raiford, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Marshall Vaughan appeals the summary denial of his motion for postconviction
relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.
Vaughan pleaded nolo contendere to felony battery and was placed on five years
of drug offender probation. About six months later, Vaughan violated his probation and
was sentenced to ten years in prison. Vaughan then timely filed a motion for
postconviction relief, asserting, among other things, a claim of newly discovered
evidence. The postconviction court summarily denied relief, concluding that the
evidence—an affidavit from a recanting witness—was not newly discovered because it
was in Vaughan’s possession after his original plea, but before he pleaded to the violation
of probation.
Vaughan’s newly discovered evidence claim should have been measured from
when he entered his original plea, not the subsequent violation of probation proceeding.
Thus, we reverse and remand to the postconviction court for further consideration.
REVERSED and REMANDED for further proceedings.
ORFINGER, LAMBERT and EDWARDS, JJ., concur.
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