RUDY SOMINTAC, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rudy Somintac appeals the denial of his petition for writ of error coram nobis, which sought to set aside his 1994 no contest plea to lewd assault on grounds that he was not informed the plea could subject him to deportation. The court affirmed the denial, holding that such defects in plea colloquy are not traditionally cognizable under coram nobis, while certifying direct conflict with Fourth District decisions.
The court affirmed the denial of coram nobis relief, holding that defects in plea colloquy relating to failure to advise of collateral consequences such as deportation are not traditionally cognizable under coram nobis. However, the court recognized that appellant's petition was timely under the two-year filing window established in Wood v. State.
[1] A petition for writ of error coram nobis is timely if filed within the two-year period established by the Florida Supreme Court in Wood v. …
[2] Relief via writ of error coram nobis is unavailable for defects in a plea colloquy concerning potential deportation consequences, as such claims are not traditionally cog…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In these cases, the defendants do not seek coram nobis relief asserting errors of fact or newly discovered evidence, but rather on the basis of an error of law, to wit, an irregularity in their plea colloquy rendering their pleas involuntary.”
Establishes that coram nobis is not the appropriate remedy for errors of law in plea colloquy, distinguishing such errors from errors of fact or newly discovered evidence.
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Join FLexlaw to unlock all legal intelligenceIn 1994, appellant entered a no contest plea to the charge of lewd assault and completed his sentence. In 1998, four years later, appellant filed a pe…
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PER CURIAM.
Rudy Somintac appeals an order denying his petition for writ of error coram nobis. We affirm on authority of Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998), review granted, 722 So. 2d 193 (Fla.1998).
In 1994 appellant entered a no contest plea to the charge of lewd assault. He completed his sentence.
In 1998, appellant filed a petition for writ of error coram nobis in the trial court, seeking to set aside the plea because the court and trial counsel failed to advise him that his plea of no contest might subject him to deportation. By virtue of the Florida Supreme Court’s recent decision Wood v. State, 750 So. 2d 592 (Fla. 1999), the petition is timely. The court has allowed a two-year period from May 27, 1999, “within which to file claims traditionally cognizable under coram nobis.” Id.
The State argues that appellant’s petition is time-barred because more than two years have elapsed from the plea date. For this argument the State relies on Vonia v. State, 680 So. 2d 438 (Fla. 2d DCA 1996), cited by the Florida Supreme Court in the Wood decision. If the State’s analysis were correct, then the Florida Supreme Court would have denied relief to Wood, who was attacking a plea entered ten years previously. The court held that Wood would be given the benefit of the newly-created two-year time window to file his claim. As we read Wood, appellant in this case receives benefit of the two-year time window and his claim is not time-barred.
Turning to the merits, appellant concedes that this court has held coram nobis relief to be unavailable in these circumstances. In Peart, this court said:
In these cases, the defendants do not seek coram nobis relief asserting errors of fact or newly discovered evidence, but rather on the basis of an error of law, to wit, an irregularity in their plea colloquy rendering their pleas involuntary. State v. Garcia, 571 So. 2d 38 (Fla. 3d DCA 1990). Moreover, these petitions for relief do not assert claims “of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment.” Hallman, 371 So. 2d at 485. Coram no-bis relief, therefore, is not the appropriate remedy.
705 So. 2d at 1062. Thus, under this court’s precedent, relief must be denied because this type of defect in a plea colloquy is, in this court’s view, not traditionally cognizable under coram nobis.
On this point we certify direct conflict with Kalici v. State, 24 Fla. L. Weekly D1714, — So. 2d —, 1999 WL 512133 (Fla. 4th DCA July 21, 1999), and Gregersen v. State, 714 So. 2d 1195 (Fla. 4th DCA 1998), review granted, 728 So. 2d 205 (Fla. 1998).
Affirmed; direct conflict certified.
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Ford v. State, 753 So. 2d 595 (Fla. 3d DCA 2000)…PER CURIAM. Kenneth P. Ford appeals from an order denying his petition for writ of error co-ram nobis. We affirm based on the authority of Somintac v. State, 748 So. 2d 301 (Fla. 3d DCA 1999), Bartz v. State, 740 So. 2d 1243 (Fla. 3d DCA 1999), Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998), Rhodes v. State, 701 So. 2d 388 (Fla. 3d DCA 1997), and State v. A.J. Fox, 659 So. 2d 1324 (Fla. 3d DCA 1995). In July of 1…1 / 2
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Somintac v. State, 767 So. 2d 1171 (Fla. 2000)…PER CURIAM. We have for review the decision in Somintac v. State, 748 So. 2d 301 (Fla. 3d DCA 1999), which was certified to be in conflict with the opinions in Kalici v. State, 755 So. 2d 680 (Fla. 4th DCA 1999), approved, 767 So. 2d 451 (Fla.2000), and Gregersen v. State, 714 So. 2d 1195 (Fla. 4th DCA 1998), approved, 758 So. 2…
Authorities Cited
- Wood v. State, 750 So. 2d 592 (Fla. 1999)
- Roan Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998)
- Knafel v. State, 714 So. 2d 1195 (Fla. 2d DCA 1998)
- State v. Wenceslao Garcia, 571 So. 2d 38 (Fla. 3d DCA 1990)
- Gino B. Vonia v. State, 680 So. 2d 438 (Fla. 2d DCA 1996)