MARLING ALFARO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Marling Alfaro appeals the denial of her Rule 3.850 motion for postconviction relief, arguing that her 1991 guilty plea to burglary and criminal mischief should be vacated because she was not warned of potential immigration consequences. The appellate court reverses, holding that once the INS initiates deportation proceedings, a defendant is necessarily threatened with deportation and the Rule 3.850 motion is timely for consideration on the merits.
The Rule 3.850 motion is timely and not premature once the INS begins deportation proceedings, as the defendant is necessarily threatened with deportation at that point. The motion is facially sufficient when accompanied by an INS notice to appear listing the conviction as grounds for deportation and a plea colloquy transcript showing no immigration warning was given.
[1] A motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 is timely when a defendant has received a notice to appear in deportation proceedings ba…
[2] A defendant is considered "threatened with deportation" for purposes of a Rule 3.850 motion once immigration and naturalization service deportation proceedings have comme…
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“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 a defendant must face deportation threat to pursue Rule 3.850 relief
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Join FLexlaw to unlock all legal intelligenceIn 1991, Alfaro pled guilty to Burglary of an Occupied Structure and Criminal Mischief with a withhold of adjudication and one year of probation, whic…
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COPE, J.
Marling Alfaro appeals an order denying her motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We respectfully disagree with the trial court’s conclusion that the Rule 3.850 motion was premature, and remand for further proceedings.
Defendant-appellant Alfaro in 1991 pled guilty to Burglary of an Occupied Structure and Criminal Mischief. There was a withhold of adjudication and a sentence of one year of probation, which the defendant successfully completed. There was no warning of possible immigration consequences during the plea colloquy as required by Florida Rule of Criminal Procedure 3.172(c)(8).
The defendant’s Rule 3.850 motion asserts that she has been threatened with deportation as a result of her 1991 plea. Attached to her motion is a Notice to Appear issued by the United States Immigration and Naturalization Service (“INS”). The notice states that it is a notice to appear “in removal proceedings under section 240 of the Immigration and Nationality Act.” It directs the defendant to appear before an immigration judge.
The INS notice alleges in part that the defendant is a citizen of Nicaragua and that she was convicted in 1991 of grand theft and criminal mischief. The notice states that on the foregoing basis, the defendant is subject to removal from the United States.
The State argued that the Rule 3.850 motion should be denied as premature. The trial court agreed, reasoning that any ruling on the 3.850 motion should await a decision in the deportation proceeding. The trial court took the view that if the defendant were successful in the INS proceeding, then it would not be necessary for the trial court to entertain the Rule 3.850 motion. While we understand the trial court’s view, under established precedent the Rule 3.850 motion is timely and must proceed to consideration on the merits.
The Florida Supreme Court in Peart v. State, 756 So. 2d 42 (Fla.2000), stated that “in order for a defendant to establish a prima facie case for relief, the defendant must be threatened with deportation resulting from the plea.” Id. at 46 (emphasis added). Thus, once the INS begins deportation proceedings, a defendant is necessarily “threatened with deportation,” and the Rule 3.850 motion is timely. Kindelan v. State, 786 So. 2d 599 (Fla. 3d DCA 2001).
In State v. Seraphin, 818 So. 2d 485 (Fla.2002), the defendant filed a Rule 3.850 motion alleging that the United States Immigration and Naturalization Service sought to deport him, and served him with a notice to appear. A copy of the notice, which listed his conviction as grounds for deportation, was attached to his motion, as well as a transcript of his plea colloquy. The transcript reflected that immigration consequences had not been discussed at that hearing.
Id. at 486.* The Florida Supreme Court ruled that the motion was facially suffi cient and remanded for an evidentiary hearing. Id. at 491.
In the present case the defendant has received an INS notice to appear in deportation proceedings, and the notice states that it is based on the defendant’s 1991 conviction. The defendant has filed a transcript of the plea colloquy, which contains no warning regarding immigration consequences. It follows that the Rule 3.850 motion is now timely. We remand for an evidentiary hearing. Seraphin, 818 So. 2d at 491.
Reversed and remanded for further proceedings consistent herewith.
*
If a defendant is in possession of the plea colloquy, then it should be attached to the motion. If a defendant does not have possession of the plea colloquy, it is sufficient to allege that the defendant was not warned of the immigration consequences of the plea.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Owran Green, 944 So. 2d 208 (Fla. 2006)…n to withdraw a plea entered fourteen years earlier was timely because it was filed within two years of the date when the defendant learned that INS had commenced a deportation action against him. Id. at 990. In its 2002 decision in Alfaro v. State, 828 So. 2d 1056 (Fla. 3d DCA 2002), the Third District ruled that a motion to withdraw a 1991 plea alleging that the defendant received notice to appear in deportation proceedings was timely. Id. at 1058. In State v. Lindo, 863 So. 2d 1237 (Fla. 4th DCA 2003), the…
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State v. Freijo, 987 So. 2d 190 (Fla. 3d DCA 2008)…mely under the Peart standard of “has or should have knowledge of the threat of deportation,” were filed many years after the entry of the plea: State v. Lindo, 863 So. 2d 1237 (Fla. 4th DCA 2003), filed twelve years after the plea; Alfaro v. State, 828 So. 2d 1056 (Fla. 3d DCA 2002), filed fifteen years after the plea; Ghanavati v. State, 820 So. 2d 989 (Fla. 4th DCA 2002), filed fourteen years after the plea; and Gray v. State, 774 So. 2d 30 (Fla. 2d DCA 2000), filed ten years after the plea. Green, 944 So.…
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State v. Ruiz, 30 So. 3d 653 (Fla. 3d DCA 2010)…ay the defendant can actually articulate a prima facie case, it stands to reason that the day the defendant learns of the threat should likewise start the running of the two-year limitation period. Peart, 756 So. 2d at 46. See also Alfaro v. State, 828 So. 2d 1056, 1057 (Fla. 3d DCA 2002) (holding that a Notice to Appear issued by the United States Immigration and Naturalization Service, stating that the defendant was “subject to removal” was facially sufficient to invoke postconviction jurisdiction under Pea…
Previewing 3 of 4 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)
- State v. Seraphin, 818 So. 2d 485 (Fla. 2002)