FRANCISCO SALDANA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Francisco Saldana appeals the denial of his motion for post-conviction relief, claiming he was not advised of immigration consequences from his state no-contest plea and that this plea caused his deportation proceedings. The Florida District Court of Appeal affirms the trial court's denial, holding that Saldana failed to establish that his state conviction, rather than his subsequent federal convictions, prompted the INS investigation.
The court affirmed the denial of post-conviction relief, holding that Saldana failed to establish that his state conviction prompted the INS investigation and that he failed to allege facts sufficient to establish a prima facie case for relief because he was only under investigation for deportation, not actually threatened with deportation.
[1] A defendant seeking post-conviction relief based on a failure to advise of immigration consequences must establish that the state conviction caused the immigration invest…
[2] A defendant must be threatened with deportation resulting from a plea to establish a prima facie case for post-conviction relief.
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Join FLexlaw to unlock all legal intelligence“Saldana cannot show that it was the state conviction that prompted the INS investigation because he was subsequently convicted in federal court of one count of conspiracy to possess cocaine with intent to distribute; three counts of use and carrying a firearm during a drug trafficking crime; five counts of possession of cocaine with intent to distribute; and two counts of possession of a firearm by a convicted felon.”
Establishes that the federal convictions, not the state plea, were the likely cause of the INS investigation.
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Join FLexlaw to unlock all legal intelligenceSaldana entered a no-contest plea in state circuit court on April 18, 1990, pleading to credit time served. On July 22, 1996, he was convicted in fede…
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PER CURIAM.
Francisco Saldana appeals the denial of his motion for post-conviction relief in which the trial court held that he had failed to establish that his state conviction was the cause for an Immigration and Naturalization Service (INS) notification of deportation. Because the trial court correctly denied Saldana’s motion, we affirm.
Saldana entered a plea of no contest in state circuit court on April 18, 1990. On July 22, 1996, he was convicted in the United States District Court, Southern District of Florida, of drug and firearm charges for which he was sentenced to life imprisonment. The Federal Bureau of Prisons notified the INS that Saldana was an alien in federal custody. INS then issued a detainer against him on September 26, 1996, indicating that an investigation had been initiated to determine whether he was subject to deportation from the United States.
Saldana argues that he was not advised of the potential immigration consequences of his no contest plea, that the trial court failed to advise him that he was a potential deportee as required by rule 3.172(c)(8), Florida Rules of Criminal Procedure, and that he will remain in custody after the completion of his federal sentence as a direct result of the entry of his plea.
First, Saldana cannot show that it was the state conviction that prompted the INS investigation because he was subsequently convicted in federal court of one count of conspiracy to possess cocaine with intent to distribute; three counts of use and carrying a firearm during a drug trafficking crime; five counts of possession of cocaine with intent to distribute; and two counts of possession of a firearm by a convicted felon. He was sentenced to serve a life term of imprisonment. Although our record does not reflect what he was convicted of in state court, the plea to “credit time served” obviously involved less serious charges. The detainer itself only advises him that an investigation has ensued and makes no mention of his state conviction.
Second, in order for a defendant to establish a prima facie case for relief, he or she must 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.
Affirmed.
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Cited By (16 total)
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State v. Owran Green, 944 So. 2d 208 (Fla. 2006)…conflict cases, the Third District ruled that circumstances 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 prob…1 / 3
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Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002)…from the Bro-ward Circuit Court. The State argues and we agree, that because the defendant’s deportation consequences may have resulted from his 1989 felony conviction, he cannot demonstrate the prejudice required under Peart. See Saldana v. State, 786 So. 2d 643, 644 (Fla. 3d DCA 2001)(holding that to establish a prima facie case for relief the defendant must show he is being threatened with deportation resulting from the plea); State v. Oakley, 715 So. 2d 956, 957 (Fla. 4th DCA 1998)(holding that the defen…
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Curiel v. State, 795 So. 2d 180 (Fla. 3d DCA 2001)…y he is subject to being detained. Accordingly, defendant has failed to make the showing necessary for the relief sought. See Vaval v. State, 792 So. 2d 649 (Fla. 3d DCA 2001); Rodriguez v. 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…
Previewing 3 of 16 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)
- Kindelan v. State, 786 So. 2d 599 (Fla. 3d DCA 2001)