JUAN MARTINEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the two-year limitation period for a postconviction relief claim regarding failure to inform of deportation consequences begins when the defendant has or should have knowledge of the deportation threat.
[1] The two-year limitation period for a claim that a trial court failed to inform a defendant of possible deportation consequences of a plea begins to run when the defendant…
[2] A motion for postconviction relief alleging a trial court's failure to inform a defendant of potential deportation consequences is not facially untimely if filed after th…
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded nolo contendere and was placed on probation. He later sought postconviction relief, alleging the trial court failed to inform him of…
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ALTENBERND, Chief Judge.
Juan Martinez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We reverse and remand in light of the Florida Supreme Court’s decision in Peart v. State, 756 So. 2d 42 (Fla.2000).
In 1993, Mr. Martinez entered a plea of nolo contendere to a charge of aggravated assault. The trial court withheld adjudication and placed him on probation for a period of one year. He did not appeal the sentence and allegedly completed the term of probation without incident.
In February 2002, the Immigration and Naturalization Service issued a notice to appear, stating that Mr. Martinez was subject to removal. He quickly filed a motion for postconviction relief, alleging that the trial court failed to inform him of the potential deportation consequences of his plea as required by Florida Rule of Criminal Procedure 3.172. He further alleged that he was unaware of these consequences and would not have pleaded nolo contendere if he had been aware of them. The trial court denied the motion because it had not been filed within two years from the date the judgment became final.
In Peart, the supreme court held that the two-year limitation period applicable to a defendant’s claim that the trial court failed to inform the defendant of possible deportation following entry of a guilty plea begins to run when the defendant has or should have knowledge of the threat of deportation. Peart, 756 So. 2d at 46; see also Gray v. State, 774 So. 2d 30 (Fla. 2d DCA 2000). Accordingly, Mr. Martinez’s claim cannot be ruled untimely on its face.
Because Mr. Martinez’s claim is facially sufficient in all other respects, we remand this matter to the trial court to reconsider his motion. On remand, the trial court may again deny this motion if the allegations are conclusively refuted by record attachment. If not, the trial court must conduct an evidentiary hearing on this claim.
Reversed and remanded.
NORTHCUTT and SALCINES, JJ., Concur.
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 for newly discovered evidence. The Second District reversed, concluding that the motion was filed within two years of the time when the defendant had or should have had knowledge of the threat of deportation. Id. at 31; see also Martinez v. State, 842 So. 2d 900, 901 (Fla. 2d DCA 2003) (concluding that motion filed “quickly” after INS notice to appear in deportation proceedings, but nine years after plea, “cannot be ruled untimely on its face”). [*215] Even under the Fourth District’s less exacting standard…
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Carroll v. State, 164 So. 3d 106 (Fla. 1st DCA 2015)…lorida Rule of Criminal Procedure B.801. The trial court denied the motion as untimely. We reverse for further proceedings. It is improper to deny a postconviction motion as time-barred where the motion is timely on its face. See Martinez v. State, 842 So. 2d 900, 901 (Fla. 2d DCA 2003), Further, an order denying a postconviction motion as procedurally barred may be reversed where the record does not reflect that the defendant is not entitled to relief. See Salabarria v. State, 100 So. 3d 231, 232 (Fla. 3d D…
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Rosendo G. Velazquez v. State, 963 So. 2d 295 (Fla. 4th DCA 2007)…im v. State, 950 So. 2d 542, 543 (Fla. 4th DCA 2007); see also Gaston v. State, 950 So. 2d 397 (Fla.2007). On remand, the trial court may again deny this motion if the allegations are conclusively refuted by the record attachment. Martinez v. State, 842 So. 2d 900 (Fla. 2d DCA 2003). Otherwise, the trial court must conduct an evidentiary hearing on the claim, at which the court may consider any other defenses the state might raise, such as laches. STONE, WARNER and GROSS, JJ., concur.…
Authorities Cited
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- Gray v. State, 774 So. 2d 30 (Fla. 2d DCA 2000)