JUAN MENDED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the summary denial of postconviction relief for failure to allege actual deportation threat, but without prejudice to refiling with sufficient factual allegations.
A postconviction motion alleging involuntary plea due to lack of immigration consequence warnings is facially insufficient when it asserts only general danger of deportation without affirmatively alleging actual threatened deportation.
[1] A postconviction motion claiming involuntary plea due to inadequate immigration consequence warnings must affirmatively allege actual threatened deportation, not merely g…
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Join FLexlaw to unlock all legal intelligenceJuan Mendez was convicted and filed a postconviction motion claiming his plea was involuntary because he was not informed of immigration consequences,…
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DAVIS, Judge.
Juan Mendez appeals the summary denial of his motion for postconviction relief. In that motion he alleged that his plea was involuntary because he was not informed of the immigration consequences of the conviction. See Peart v. State, 756 So. 2d 42 (Fla.2000). We affirm because we conclude that his motion is facially insufficient. Specifically, Mendez’s motion fails because he asserted only that he was generally “in danger of deportation” and did not affirmatively allege that he is now actually threatened with deportation as a result of the convictions he attacks. See Saldana v. State, 786 So. 2d 643 (Fla. 3d DCA 2001). Our affirmance is, however, without prejudice to Mendez’s right to file a facially sufficient motion if he is able to do so. See Perez v. Moore, 767 So. 2d 1170 (Fla.2000). Any such motion filed within sixty days of the issuance of this mandate shall be deemed timely filed and shall not be denied as successive. Alternatively, if Mendez is not able to make a facially sufficient claim at this time, this affirmance is without prejudice to his right to refile if at some time in the future he is actually threatened with deportation as a result of these convictions. See Rodriguez v. State, 789 So. 2d 548 (Fla. 3d DCA 2001).
Affirmed.
ALTENBERND, A.C.J., and SALCINES, J., Concur.
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Vaillancourt v. State, 845 So. 2d 983 (Fla. 4th DCA 2003)…denying the motion as it is facially insufficient. Fla. R.Crim. P. 3.850(d). The order denying the motion is affirmed, without prejudice to Vaillancourt filing a legally sufficient motion. Perez v. Moore, 767 So. 2d 1170 (Fla.2000); Mendez v. State, 805 So. 2d 905 (Fla. 2d DCA 2001). POLEN, C.J., STONE and MAY, JJ., concur.…
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Franklyn Glinton v. State, 850 So. 2d 609 (Fla. 2d DCA 2003)…formed of the deportation consequences of the conviction. His claim is facially insufficient because he has not affirmatively alleged nor demonstrated that he is threatened with deportation as a result of the robbery conviction. See Mendez v. State, 805 So. 2d 905 (Fla. 2d DCA 2001); Bellevue v. State, 794 So. 2d 730 (Fla. 3d DCA 2001). Therefore, we affirm without prejudice to whatever right Glin-ton may have to file a facially sufficient rule 3.850 motion if he can establish that his robbery conviction has…
Authorities Cited
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- Saldana v. State, 786 So. 2d 643 (Fla. 3d DCA 2001)
- State Farm Mut. Auto. Ins. Co. v. Grove, 767 So. 2d 1170 (Fla. 2000)
- Vargas v. Cruise Ship Catering & Serv. Caribbean N.V. "CSCS", 789 So. 2d 548 (Fla. 3d DCA 2001)