ROODY JOSEPH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roody Joseph appeals the summary denial of his Rule 3.850 motion for postconviction relief, claiming his five nolo contendere pleas were involuntary because he was not adequately advised of deportation risks. The court reverses and remands, holding that a plea form with a deportation warning alone is insufficient to demonstrate compliance with the rule; actual evidence that the defendant intelligently understood the warning is required.
A plea form with a deportation warning alone is insufficient to comply with Rule 3.172(c)(8). The trial court must have record documentation showing either that a verbal warning was given by the court or that the court confirmed the defendant read and understood the plea form. The trial court may again summarily deny the claims on remand only if such documentation exists; otherwise, an evidentiary hearing is necessary.
[1] A defendant's claim that a plea was involuntary due to lack of advice regarding deportation risk is facially sufficient if not refuted by the record.
[2] A signed plea form containing a deportation warning is insufficient, on its own, to demonstrate compliance with the rule requiring advice of deportation risk.
Previewing 2 of 5 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“A plea form with a deportation warning is not, alone, sufficient to demonstrate compliance with rule 3.172(c)(8).”
Establishes the core holding that written warnings on plea forms are insufficient without additional record evidence of understanding.
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Join FLexlaw to unlock all legal intelligenceJoseph entered five nolo contendere pleas in separate cases between 1989 and 1998. Each plea involved a signed one-page Acknowledgment and Waiver of R…
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PER CURIAM.
Roody Joseph appeals from the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Joseph has stated a facially sufficient claim that is not refuted by the record attachments of the trial court, we reverse and remand for further proceedings consistent with this opinion.
Joseph entered five pleas of nolo conten-dré in separate cases in 1989, 1991, 1995, 1997 and 1998. Joseph claims that these five pleas were involuntary because he was not advised of the risk of deportation resulting from his pleas, as required by Florida Rule of Criminal Procedure 3.172(c)(8). He further asserts that he is awaiting deportation.
In each of Joseph’s pleas, he signed a one page Acknowledgment and Waiver of Rights form (plea form) which advised of the risk of deportation arising from the plea. Joseph asserts that neither the trial court nor his attorney advised him of the possible adverse consequences of the pleas upon his immigration status, and that had he been made aware of the possible deportation resulting from the pleas, he would have gone to trial.
In denying Joseph’s motion for postconviction relief, the trial court held that although the motion was facially sufficient, it was refuted by the record. We agree that it is facially sufficient, see Peart v. State, 756 So. 2d 42 (Fla.2000), but cannot agree with the trial court’s conclusion that it is refuted by the record.
The trial court attached the five plea forms and a single transcript page from an unidentified plea colloquy to support its conclusions. The trial court found that each plea form specifically advised Joseph that if he was not a United States citizen, the plea might subject him to deportation. Further, pointing to the single transcript page, the court noted that Joseph could read and write the English language.
A plea form with a deportation warning is not, alone, sufficient to demonstrate compliance with rule 3.172(c)(8). See Hen Lin Lu v. State, 683 So. 2d 1110 (Fla. 4th DCA 1996). A plea form containing the deportation warning together with record documentation that the defendant has intelligently consumed the written information contained on the form and understood it is, however, sufficient. See id. at 1111-12; Hinds v. State, 726 So. 2d 812 (Fla. 5th DCA 1999).
In the instant case, the record attachments are not sufficient to demonstrate that Joseph intelligently consumed the contents of the plea form and understood it. We therefore reverse and remand for further proceedings. On remand, the trial court may again summarily deny the claims, but only if it attaches record documentation conclusively demonstrating that the verbal warning required by rule 3.172(c)(8) was given by the court, or that the court confirmed that Joseph read and understood the plea forms. See Hen Lin Lu, 683 So. 2d 1110; Hinds, 726 So. 2d 812. Otherwise, an evidentiary hearing will be necessary.
Reversed and remanded.
FULMER, A.C.J., and STRINGER and DAVIS, JJ., concur.
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Citator
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State v. Gonzalez, 787 So. 2d 917 (Fla. 3d DCA 2001)…colloquy the trial court established that the defendant had entered into the plea freely and voluntarily and that the defendant had understood the written plea agreement. Hinds v. State, 726 So. 2d 812 (Fla. 5th DCA 1999); see also, Joseph v. State, 782 So. 2d 895 (Fla. 2d DCA 2001). The order granting the defendant’s 3.850 motion is, therefore, Reversed.…
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Osric Jones v. State, 804 So. 2d 445 (Fla. 1st DCA 2001)…t a withhold of adjudication of guilt would not affect his immigration status. Deciding that the plea colloquy, although extensive, did not conclusively refute these allegations, the trial court ordered an evi-dentiary hearing. See Joseph v. State, 782 So. 2d 895, 896 (Fla. 2d DCA 2001); St. Preux v. State, 769 So. 2d 1116, 1117 (Fla. 2d DCA 2000); see generally State v. Leroux, 689 So. 2d 235 (Fla.1996). But see Hinds v. State, 726 So. 2d 812, 813-14 (Fla. 5th DCA 1999). On the record made at the evidentia…
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State v. Fitzroy Burton, 63 So. 3d 854 (Fla. 1st DCA 2011)…im to deportation” where the plea agreement provided this information, defendant read the agreement, and trial court during plea colloquy established that defendant entered into plea freely and with understanding of plea agreement); Joseph v. State, 782 So. 2d 895, 896 (Fla. 2d DCA 2001) (“A plea form containing the deportation warning together with record documentation that the defendant has intelligently consumed the written information contained on the form and understood it is ... sufficient [to conclusiv…
Authorities Cited
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- HEN LIN LU v. State, 683 So. 2d 1110 (Fla. 4th DCA 1996)
- Hinds v. State, 726 So. 2d 812 (Fla. 5th DCA 1999)