DAVID RODRIGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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David Rodriguez appeals the trial court's dismissal of his postconviction relief motion as untimely. The court reversed, holding that under State v. Johnson, a postconviction motion challenging counsel's misadvice about the collateral consequences of a no-contest plea is timely when the defendant first discovers the adverse consequences years after the plea, and remanded for further proceedings.
The court held that under State v. Johnson, such a postconviction motion is timely and should be entertained on the merits, even if filed years after the plea, when the defendant first learns of the adverse civil consequences of the plea.
[1] A motion for postconviction relief is timely when filed within a reasonable time after the defendant discovers the adverse civil consequences of a plea, even if the disco…
[2] Affirmative misadvice from counsel regarding the future civil consequences of a no contest plea can render a subsequent motion for postconviction relief timely.
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Join FLexlaw to unlock all legal intelligence“counsel advised the defendant that a withhold of adjudication meant that this case would not be considered a conviction or adjudication of any type, and would have no impact on the defendant in the future”
Establishes the alleged misadvice about the consequences of the plea that forms the basis of the ineffective assistance claim
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Join FLexlaw to unlock all legal intelligenceIn 1994, Rodriguez pleaded no contest to carrying a concealed firearm and acting as a contractor without a license on counsel's advice, receiving a wi…
The full statement of facts, procedural history, and disposition for this case are member content.
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COPE, J.
David Rodriguez appeals an order denying his motion for postconviction relief. We respectfully disagree with the trial court’s conclusion that the motion was untimely, and remand for further proceedings.
In 1994, defendant-appellant Rodriguez was charged with carrying a concealed firearm and acting as contractor without a license. On the advice of counsel the defendant entered a no contest plea in exchange for a withhold of adjudication and a disposition of credit for two days time served.
According to the motion, counsel advised the defendant that a withhold of adjudication meant that this case would not be considered a conviction or adjudication of any type, and would have no impact on the defendant in the future. The defendant was advised that he could in the future answer no to the question whether he has ever been convicted of a crime. See generally Collier v. State, 796 So. 2d 629 (Fla. 3d DCA 2001).
Subsequently, the defendant applied to the Department of Insurance for a license as a temporary limited surety/bail bond agent. On January 3, 2002, the Department notified the defendant that the application was denied because of the 1994 plea. The Department cited subsections 648.27(2), 648.34(2)(e), and 648.45(2)(a),(e), and (k), Florida Statutes (2001).
The defendant filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 which the trial court denied as untimely. The defendant has appealed.
We agree with the defendant that under State v. Johnson, 615 So. 2d 179 (Fla. 3d DCA 1993), the motion should be deemed timely. See id. at 180 n. 1. In Johnson, there was a claim of affirmative misadvice of counsel regarding the consequences of the plea for Johnson’s employment as a correctional officer. A Rule 3.850 motion was entertained on the merits where Johnson first learned of the adverse civil consequences of his plea two years and four months after entering the plea. See id. Under Johnson, the motion now before us should not have been denied as untimely.
We therefore reverse the order now before us and remand for further proceedings in the trial court. We express no view on the ultimate merits.
Reversed and remanded for further proceedings consistent herewith.
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Marshall v. State, 983 So. 2d 680 (Fla. 4th DCA 2008)…by Marshall in what appears to be a form “Memorandum of Law for Postconviction Motion 3.850.” The form memorandum, which includes blank lines to enter case-specific information,1 argues that the mo [*682] tion is timely based on Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002). In Rodriguez, the Third District found that a postconvietion motion should have been considered on the merits where the movant did not discover counsel’s misad-vice about a collateral civil consequence until the two-year time li…
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Raimundo Gomez v. State, 126 So. 3d 444 (Fla. 4th DCA 2013)…e of deportation consequences must be brought within two years of the conviction becoming final. In Marshall, we found that the reasoning of Green should also apply in cases of misadvice. In Marshall, we certified conflict with Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002), and State v. Johnson, 615 So. 2d 179 (Fla. 3d DCA 1993). This conflict has never been resolved, although Rodriguez and Johnson were both decided prior to Green, which we conclude controls this issue. Affirmed. WARNER, MAY…
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Miralles v. State, 837 So. 2d 1083 (Fla. 4th DCA 2003)…o year filing deadline, an allegation of affirmative misadvice is reviewable under Rule 3.850 if a claim is filed within two years of discovering counsel’s misadvice. See Ghanavati v. State, 820 So. 2d 989 (Fla. 4th DCA 2002) and Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002). The defendant does not allege in his motion when he discovered counsel’s affirmative misadvice. He claims to have been advised his felony convictions bar him from maintaining the license, and had adjudication been withheld in h…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Collier v. State, 796 So. 2d 629 (Fla. 3d DCA 2001)
- State v. Johnson, 615 So. 2d 179 (Fla. 3d DCA 1993)