DOUGLAS DE ABREU, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1991-12-26
No. 90-3718
BOOTH, BARFIELD and MINER, JJ., concur.
593 So. 2d 233 Florida District Court of Appeal, First District (1991) Positive Treatment
Cited by 12 cases

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Synopsis

De Abreu appeals denial of post-conviction relief, arguing his guilty plea to cocaine possession was involuntary because the trial court failed to inform him that as a non-citizen, the plea could result in deportation. The appellate court found prejudice and reversed, remanding for a hearing on voluntariness.


Holding

The court reversed and remanded, finding that De Abreu's motion established prejudice from the trial court's failure to follow the procedural requirement, as he now faces the precise threat of deportation that the rule is designed to prevent. The trial court must conduct an evidentiary hearing to determine the voluntariness of the plea or provide conclusive evidence in the record showing De Abreu is entitled to no relief.


Headnotes

[1] A guilty plea may be deemed involuntary if the trial court fails to inform a non-citizen defendant that the plea could lead to deportation, as required by Florida Rule of…

[2] Prejudice is demonstrated when a defendant faces deportation as a direct consequence of an uninformed guilty plea, the very situation Rule 3.172(c)(viii) aims to prevent.

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Key Quotes

“if he is not a citizen of the United States, his plea may subject him to deportation pursuant to the laws and regulations governing the United States Naturalization and Immigration Service”

Statement of the procedural requirement the trial court failed to provide, establishing the content of the mandatory warning

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Facts & Procedural History

De Abreu was charged with possession of cocaine and entered a guilty plea on April 23, 1990, receiving eighteen months of supervised probation with ad…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Douglas De Abreu, appeals the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant’s motion raises several claims, one of which merits discussion. Taking as true the facts as related in the motion, appellant was charged with possession of cocaine, and on April 23, 1990, entered a plea of guilty to the stated charge.

Pursuant to the plea agreement, the state recommended a term of eighteen months of supervised probation which expired on October 23, 1991.

The trial court accepted appellant’s plea and withheld adjudication. After being placed on probation, appellant was arrested by agents of the Immigration and Naturalization Service and charged with violation of immigration laws based on appellant’s conviction for possession of cocaine.

On appeal, among the issues raised, appellant argues that his plea was entered involuntarily because of the trial court’s failure to inform him, as required by Florida Rule of Criminal Procedure 3.172(c)(viii), that if he is not a citizen of the United States, his plea may subject him to deportation pursuant to the laws and regulations governing the United States Naturalization and Immigration Service.1 Pursuant to this court’s order of October 1, 1991, the state filed a response to the claims raised in appellant’s motion.

Although Florida Rule of Criminal Procedure 3.172(i) states that failure to follow any of the procedures in this Rule shall not render a plea void absent a showing of prejudice, it appears that appellant’s motion, on its face, makes a showing that appellant’s plea was entered involuntarily and that appellant was prejudiced by the trial court’s failure to follow the procedure set forth in Rule 3.172(c)(viii).

We find prejudice in the fact that appellant is now facing the precise dilemma against which the rule is designed to protect — the surprise threat of deportation resulting from an uninformed plea of guilty or nolo con-tendere. As a consequence, we find it necessary to reverse and remand with directions to the trial court to either conduct an evidentiary hearing for the purpose of determining the voluntariness of appellant’s plea, or to attach to the order a copy of that portion of the files and records which conclusively shows that appellant is entitled to no relief.

REVERSED and REMANDED for proceedings consistent with this opinion.

BOOTH, BARFIELD and MINER, JJ., concur. . Florida Rule of Criminal Procedure 3.172 states in pertinent part:

(c) Except where a defendant is not present for a plea, pursuant to the provisions of Rule 3.180(c), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he understands the following:
(viii) That if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Naturalization and Immigration Service. It shall not be necessary for the trial.judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases.

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Citator

Cited By

  • Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
    …prove that the trial court did not provide advice regarding the possible immigration consequences of the plea and resultant prejudice. See Perriello v. State, 684 So. 2d 258, 259-60 (Fla. 4th DCA 1996); Beckles, 679 So. 2d at 892; De Abreu v. State, 593 So. 2d 233, 234 (Fla. 1st DCA 1991).5 In order to show prejudice pursuant to a rule 3.172(c)(8) violation, defendants had to establish that they did not know that the plea might result in deportation, that they were “threatened” with deportation because of the…
  • Albino Perriello v. State, 684 So. 2d 258 (Fla. 4th DCA 1996)
    …sequences of his plea. He has since been notified that deportation proceedings have been begun against him because of his conviction. He seeks to withdraw his plea, citing Marriott v. State, 605 So. 2d 985 (Fla. 4th DCA 1992), and De Abreu v. State, 593 So. 2d 233 (Fla. 1st DCA 1991), pet. for rev. dismissed, 613 So. 2d 453 (Fla.1993). Rule 3.172(c)(8), Florida Rules of Criminal Procedure, requires that the trial judge place the defendant under oath and address the defendant personally. The judge is required…
  • State v. de Abreu, 613 So. 2d 453 (Fla. 1993)
    …PER CURIAM. We originally accepted jurisdiction of De Abreu v. State, 593 So. 2d 233 (Fla. 1st DCA1991), based on apparent conflict with State v. Ginebra, 511 So. 2d 960 (Fla.1987). On consideration of the record and briefs, we perceive that the opinion under review here is based upon the rules changes adopted by our decision In re…

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