MANUEL KINDELAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Kindelan appeals the denial of his petition to vacate a 1987 plea of no contest based on the trial court's failure to advise him of immigration consequences. The court affirmed the denial, holding that a defendant must be threatened with actual deportation—not merely advised that a conviction makes him excludable—to establish grounds for relief under the error coram nobis standard.
The court held that Kindelan failed to establish a prima facie case for relief because he did not allege facts showing he was threatened with deportation resulting from his plea. Being advised that a conviction constitutes grounds for exclusion from the United States is legally distinct from being threatened with actual deportation proceedings, and only the latter satisfies the prejudice requirement.
[1] A defendant seeking to vacate a plea based on a failure to advise of immigration consequences must allege facts establishing a prima facie case for relief.
[2] Advising a defendant that a conviction constitutes grounds for exclusion from the United States is not equivalent to being threatened with deportation as a result of a pl…
Previewing 2 of 3 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 order for a defendant to establish a prima facie case for relief, the defendant must be threatened with deportation resulting from the plea.”
Establishes the legal standard from Peart v. State that governs when immigration consequences warrant vacation of a plea
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Join FLexlaw to unlock all legal intelligenceKindelan, a Cuban citizen, entered a plea of no contest on August 14, 1987, to possession of a controlled substance, disorderly conduct, and resisting…
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PER CURIAM.
Manuel Kindelan appeals an order which denies his petition for writ of error coram nobis to vacate a plea of no contest entered on August 14, 1987, to the charges of possession of a controlled substance, disorderly conduct and resisting an officer without violence. The trial court" denied Kindelan’s petition holding that only the institution of imminent deportation proceedings by the Immigration and Naturalization Service against a defendant, as a result of entering a plea, qualified as the type of “prejudice” requiring vacation of a plea. We affirm.
In his petition, Kindelan alleged that he is a citizen of Cuba and should be allowed to withdraw his plea because the trial court never advised him of the immigration consequences of his plea pursuant to Florida Rule of Criminal Procedure 3.172(c)(8)1 and Peart v. State, 756 So. 2d 42 (Fla.2000). The petition was filed after INS denied Kindelan’s request for permanent residency status because of his convictions.
In this appeal, the State previously argued that the issue was not properly before us because the record was incomplete due to the absence of a transcript of the relevant plea colloquy. We remanded pursuant to rule 9.200(b)(4), Florida Rules of Appellate Procedure, in an unsuccessful attempt to reconstruct the record.2
We now hold that the trial court correctly denied Kindelan’s petition because he has not alleged facts sufficient to establish a prima facie case for relief. See Peart, 756 So. 2d at 46 (“in order for a defendant to establish a prima facie case for relief, the defendant must be threatened with deportation resulting from the plea.”). Kindelan has only alleged that when he applied to adjust his immigration status, INS advised him that he was excludable from the United States due to his conviction. However, advising a defendant that a conviction constitutes grounds for exclusion from the United States is not the same as being threatened with deportation as a result of a plea.
Affirmed.
. Although the effective date of the rule is January 1, 1989, we do not address this issue, as the trial court properly denied the writ.
. We agree with the State that appellant’s efforts to comply with the rule were totally inadequate but we decide to proceed to the merits.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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State v. Owran Green, 944 So. 2d 208 (Fla. 2006)…s falling short of initiation of deportation proceedings were insufficient to establish threatened deportation. See Curiel v. State, 795 So. 2d 180, 181 (Fla. 3d DCA 2001); Saldana v. State, 786 So. 2d 643, 645 (Fla. 3d DCA 2001); Kindelan v. State, 786 So. 2d 599, 600 (Fla. 3d DCA 2001). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We accepted this case for review to resolve the conflict. However, our review has alerted us to larger problems in applying Peart fairly, efficiently, and with adequa…1 / 3
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Saldana v. State, 786 So. 2d 643 (Fla. 3d DCA 2001)…ust be threatened with deportation resulting from a plea. See Peart v. State, 756 So. 2d 42, 46 (Fla.2000). Advising a defendant that he or she is under investigation is not the same thing as being threatened with deportation. See Kindelan v. State, 786 So. 2d 599 (Fla. 3d DCA 2001). Saldana only alleges that he will remain in custody after the completion of his federal life sentence as a direct result of his plea. Thus, Saldana has not alleged facts sufficient to establish a prima facie case for relief. Af…
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Curiel v. State, 795 So. 2d 180 (Fla. 3d DCA 2001)…State, 789 So. 2d 548 (Fla. 3d DCA 2001); Saldana v. State, 786 So. 2d 643 (Fla. 3d DCA 2001) (concluding that advising a defendant that he or she is under investigation is not the same thing as being threatened with deportation); Kindelan v. State, 786 So. 2d 599 (Fla. 3d DCA 2001). This affirmance is without prejudice to defendant refiling his 3.850 motion should the investigation lead to the threat of deportation.…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)