
    Martin MARTIN a/k/a Martin Alejandro Martin, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-979.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Philip L. Reizenstein, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring in part, dissenting in part).

Defendant-appellant Martin is entitled to an evidentiary hearing on his claim that, but for the affirmative misadvice of trial counsel regarding expungement, he would not have entered into the plea agreement. See Rodriguez v. State, 824 So.2d 328 (Fla. 3d DCA 2002). At such a hearing it would, of course, be the burden of the defendant to persuade the trial court that he actually would have turned down this favorable plea bargain if he had been given the correct information regarding ex-pungement. The question whether the defendant has shown sufficient good cause to excuse the two-year time bar presents a factual question which should also be resolved by the trial court.

I agree in affirming on the claim of newly discovered evidence. The former wife’s affidavit does not qualify as being newly discovered. There is nothing in the affidavit which undercuts the personal observations of the police officer recorded in the arrest report, nor does the wife’s affidavit address the photographic evidence referred to in the arrest report.  