Summary
The Supreme Court of Florida reviewed a conflict concerning whether a defendant must show an initiated deportation proceeding to establish prejudice from the failure to receive a plea warning about immigration consequences. The court receded from Peart v. State regarding the limitations period and the requirement of a specific threat of deportation, holding that Florida Rule of Criminal Procedure 3.850 governs timeliness and that subjecting the defendant to deportation may establish prejudice. The court quashed the Fourth District's decision and remanded because Green's motion and supporting pleadings were procedurally deficient.
Topics
Practice areas
Questions Presented
- When does the two-year limitations period begin for a Rule 3.850 motion alleging that a defendant was not advised that a guilty or no contest plea could result in deportation?
- Must a defendant establish that he has been specifically threatened with deportation, or is it sufficient to establish that the plea subjects him to deportation?
- What pleading allegations are required to obtain relief for a violation of Florida Rule of Criminal Procedure 3.172(c)(8)?
- Did the Fourth District err by relying on allegations in Green's unsworn and untimely reply to reverse the trial court's summary denial?
Holdings
- The two-year limitations period for a Rule 3.850 motion alleging a violation of Rule 3.172(c)(8) ordinarily begins when the judgment and sentence, or an order withholding adjudication of guilt, becomes final, subject to the due-diligence exception in Rule 3.850(b)(1).
- A defendant need not establish a specific threat of deportation to show prejudice from the failure to provide the Rule 3.172(c)(8) warning; it is sufficient to allege and prove that the plea subjects the defendant to deportation under current law.
- A Rule 3.850 motion based on failure to give the deportation warning must allege that the warning was not given, that the defendant would not have entered the plea if properly advised, and that the plea in fact subjects the defendant to deportation. The defendant must also state how the warning violation will be proved.
- The trial court acted within its discretion in refusing to consider Green's unsworn reply filed after the summary denial of his motion, and the Fourth District erred by relying on that reply as support for reversal.
Key quotations
“Instead, pursuant to Florida Rule of Criminal Procedure 3.850(b), the limitations period commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation.” (at 208)
“Henceforth, it is the fact that the plea subjects the defendant to deportation, rather than a specific threat of deportation, that establishes prejudice for the failure to inform the defendant in accord with rule 3.172(c)(8).” (at 218)
“A defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy must file a rule 3.850 motion within two years after the judgment and sentence become final.” (at 219)
Factual background
Green entered a no contest plea in 1993 to lesser included offenses of assault and battery. He alleged that neither his trial counsel nor the trial court advised him that the plea could subject him to deportation. In 2003, he filed a sworn Rule 3.850 motion after his wife's application for a waiver of grounds for excludability was denied, and he asserted that he had recently learned of the plea's immigration consequences. His motion did not allege that he would not have entered the plea if properly advised.
Procedural history
Green entered a 1993 no contest plea to lesser included offenses of assault and battery. In 2003, he filed a sworn Rule 3.850 motion alleging that neither the trial court nor counsel advised him that the plea could subject him to deportation. The trial court summarily denied the motion, but the Fourth District reversed based in part on allegations in Green's unsworn and untimely reply and remanded for an evidentiary hearing. The Supreme Court quashed the Fourth District's decision and remanded, directing that Green be permitted to file a compliant motion within sixty days after jurisdiction returned to the trial court.
Remand instructions
The Fourth District's decision was quashed and the case was remanded for proceedings consistent with the opinion. Green was to be allowed to file a new Rule 3.850 motion within sixty days after jurisdiction returned to the trial court. If the new motion alleged the omitted warning, that Green would not have entered the plea if warned, and that the plea subjects him to deportation, the trial court could summarily deny it only by attaching record portions conclusively refuting one or more elements; otherwise, an evidentiary hearing was required.