ALFONSO PENA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Pena appealed a trial court's denial of his Rule 3.850 motion claiming ineffective assistance of counsel for failure to advise him that his plea could result in deportation. The court affirmed the denial, finding that even though the trial judge failed to comply with the rule requiring such notification, Pena could not demonstrate prejudice because his deportation was likely a consequence of an earlier felony conviction rather than the current conviction.
The trial court properly denied the motion. Although the judge failed to comply with Florida Rule of Criminal Procedure 3.172(c)(8) by not informing Pena of deportation consequences, Pena could not demonstrate the prejudice required under Peart v. State because his deportation likely resulted from an earlier felony conviction rather than the current one.
[1] A defendant seeking postconviction relief based on a failure to advise of deportation consequences must demonstrate prejudice, meaning the deportation would have resulted…
[2] A defendant's false representation of citizenship during a plea colloquy does not relieve the court of its duty to advise of potential deportation consequences if the def…
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“the judge did not inform appellant at the time of the plea that "the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service...."”
Establishes the trial judge's non-compliance with the mandatory rule requiring deportation warnings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePena pleaded guilty to a crime and was not advised by the trial judge that the plea could subject him to deportation under immigration law. During the…
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KAHN, J.
We affirm the trial court’s denial of appellant Pena’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850 motion. Pena alleges in his motion that the trial court wrongly failed to advise him of the direct consequences of a plea and, in particular, that one who is not a United States citizen could be subject to deportation. We acknowledge that the circuit judge in the underlying •criminal case did in fact fail to comply with all the requirements of Florida Rule of Criminal Procedure 3.172(c)(8), in that the judge did not inform appellant at the time of the plea that “the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service....” One might speculate that the circuit -judge felt he had no need to comply with the rule. During the plea colloquy, the judge asked appellant whether he was a United States citizen. Appellant, presumably under oath, replied that he was a United States citizen. Appellant, nevertheless, now argues that the judge was not, by virtue of appellant’s falsehood, relieved of the duty to advise appellant that if he was not a United States citizen, he might be subjected to deportation. Unfortunately for appellant, Exhibit A to his Rule 3.850 motion defeats the claim. This exhibit is the notification from the Immigration and Naturalization Service concerning appellant’s possible deportation. In addition to noting the present conviction, the notice also reminds appellant that several years earlier, he was convicted in the United States District Court for the offense of possession of cocaine with the intent to distribute, in violation of federal law. “[B]ecause the defendant’s deportation consequences may have resulted from his [earlier] felony conviction, he cannot demonstrate the prejudice required under Peart [v. State, 756 So. 2d 42 (Fla.2000)].” Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002). Appellant’s motion is self-defeating in terms of the prejudice requirement, and the trial court did not err in summarily denying the motion.
AFFIRMED.
BARFIELD and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rayon Payne v. State, 869 So. 2d 633 (Fla. 5th DCA 2004)…where a defendant would be subject to deportation in light of a prior felony conviction, the defendant cannot make the showing of prejudice arising from the failure to advise of deportation consequences at a subsequent plea. See also Pena v. State, 837 So. 2d 495 (Fla. 1st DCA 2003); State v. Oakley, 715 So. 2d 956 (Fla. 4th DCA 1998). See also Bellevue v. State, 794 So. 2d 730 (Fla. 3d DCA 2001). Payne asserts that he was interviewed in the fall of 2002 by a federal immigration agent who informed him that…
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Ortega-Lozano v. State, 920 So. 2d 809 (Fla. 2d DCA 2006)…minal Procedure 3.850. Although we conclude that Ortega-Lozano’s motion was timely filed, see Chagoya v. State, 817 So. 2d 1039 (Fla. 2d DCA 2002), we affirm the denial order because Ortega-Lozano cannot demonstrate prejudice. See Pena v. State, 837 So. 2d 495 (Fla. 1st DCA 2003); Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002). Affirmed. CASANUEVA, SALCINES, and VILLANTI, JJ., Concur.…
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Rosas v. State, 991 So. 2d 1003 (Fla. 4th DCA 2008)…ich alleges that the conviction in that case subjects him to deportation. This refutes his claim of prejudice from this plea. See State v. Oakley, 715 So. 2d 956 (Fla. 4th DCA 1998); Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002); Pena v. State, 837 So. 2d 495 (Fla. 1st DCA 2003). Affirmed. WARNER, FARMER and HAZOURI, JJ., concur.…
Authorities Cited
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002)