SORIM PETRU VACAREAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vacarean appeals the denial of his motion for post-conviction relief, arguing the trial court failed to advise him that his plea to a probation violation could result in deportation. The court affirms, holding that Vacarean failed to demonstrate prejudice because he produced no evidence that he faces deportation or that deportation would result from this conviction.
A defendant seeking post-conviction relief based on failure to advise of immigration consequences must demonstrate prejudice by showing actual evidence that he faces deportation resulting from the conviction. Because Vacarean produced no such evidence, he failed to establish a prima facie case for relief, and the court need not decide whether such advice is required for probation violations.
[1] A petitioner seeking post-conviction relief based on a trial court's failure to advise of potential immigration consequences of a plea must demonstrate prejudice.
[2] To establish a prima facie case for post-conviction relief based on immigration consequences, a defendant must show they are being threatened with deportation resulting f…
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“To obtain post-conviction relief based on a failure to advise the defendant of the possible immigration consequences of a guilty plea, the petitioner must demonstrate prejudice.”
Establishes the fundamental requirement that a defendant must show prejudice to succeed on this type of post-conviction claim.
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Join FLexlaw to unlock all legal intelligenceVacarean entered a plea to a violation of probation. He subsequently filed a motion for post-conviction relief claiming the trial court failed to advi…
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STONE, J.
Vacarean appeals an order denying his motion for post-conviction relief on the ground that, when he entered his plea to a violation of probation, the trial court did not advise him that if he was not a citizen of the United States, he could be subject to deportation as a consequence of entering the plea.1 We affirm.
To obtain post-conviction relief based on a failure to advise the defendant of the possible immigration consequences of a guilty plea, the petitioner must demonstrate prejudice.
Here, Vacarean has produced no evidence that he faces deportation. Further, even if he did face deportation, he must show that such a consequence resulted from this conviction. See State v. Oakley, 715 So,2d 956, 957 (Fla. 4th DCA 1998); 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 his plea; advising a defendant he is under investigation is not the same thing as being threatened with deportation); Curiel v. State, 795 So. 2d 180, 181 (Fla. 3d DCA 2001)(concluding that petitioner’s claim that he received notice a detainer would be placed on him was insufficient to constitute prima facie showing he had been “threatened with deportation resulting from the plea” where notice did not state the reason petitioner was subject to detainer); Kindelan v. State, 786 So. 2d 599, 599 (Fla. 3d DCA 2001)(holding that petitioner was not entitled to post-conviction relief simply because INS had advised him he was ex-cludable from the U.S. as a result of his conviction).
Because Vacarean has failed to demonstrate prejudice from the trial court’s failure to advise him of possible immigration consequences of a guilty plea, we affirm the denial of Vacarean’s motion for post-conviction relief. Accordingly, we need not address the issue of whether such advice is even required for admitted violations of probation. See Edwards v. State, 721 So. 2d 744 (Fla. 4th DCA 1998); Allen v. State, 662 So. 2d 380 (Fla. 4th DCA 1995); Washington v. State, 284 So. 2d 236 (Fla. 2d DCA 1973).
POLEN, C.J. and STEVENSON, J„ concur. . We note that Vacarean does not argue that the trial court failed to advise him of the possible immigration consequences when he entered his original plea.
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Citator
Cited By
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State v. Carmona, 827 So. 2d 342 (Fla. 3d DCA 2002)…ation would follow, the lower court conducted a hearing [*343] and ultimately, granted defendant’s motion. We reverse. The law is clear that to obtain the sought after relief in this case defendant must demonstrate prejudice. See Vacarean v. State, 810 So. 2d 1055 (Fla. 4th DCA 2002). In this case, defendant has failed to prove that he is presently facing deportation. The very scant record before us establishes only that the federal government is seeking to denaturalize him. Although defendant argues in his b…
Authorities Cited
- Kindelan v. State, 786 So. 2d 599 (Fla. 3d DCA 2001)
- Saldana v. State, 786 So. 2d 643 (Fla. 3d DCA 2001)
- State v. Fernanda Oakley, 715 So. 2d 956 (Fla. 4th DCA 1998)
- Smith v. State, 284 So. 2d 236 (Fla. 2d DCA 1973)
- Allen v. State, 662 So. 2d 380 (Fla. 4th DCA 1995)
- Curiel v. State, 795 So. 2d 180 (Fla. 3d DCA 2001)
- Edwards v. State, 721 So. 2d 744 (Fla. 4th DCA 1998)