EDUARDO APARICIO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Eduardo Aparicio appealed the denial of his Rule 3.850 motion to vacate his plea to kidnapping, claiming ineffective assistance of counsel regarding immigration consequences. The court affirmed, holding that Aparicio must face imminent deportation proceedings, not merely the possibility of deportation, to establish grounds for relief.
The court held that a defendant must establish that the Immigration and Naturalization Service has instituted imminent deportation proceedings against him as a result of his plea in order to establish a prima facie case for relief. The mere possibility of immigration consequences is insufficient; the threat of deportation must be imminent and actual, not speculative.
[1] A defendant seeking to vacate a conviction based on immigration consequences must demonstrate that deportation proceedings have been instituted against them, not merely t…
[2] A defendant's motion to vacate a conviction based on alleged misadvice regarding immigration consequences is premature if deportation proceedings have not yet been initia…
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“it is not the possibility of immigration consequences, but rather 'the institution of imminent deportation proceedings by the Immigration and Naturalization Service against a defendant, as a result of entering a plea,' that constitutes 'facts sufficient to establish a prima facie case for relief.'”
Establishes the legal standard that imminent deportation proceedings, not mere possibility of consequences, are required for relief under Rule 3.850.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1998, Aparicio pleaded nolo contendere to kidnapping and was sentenced to 364 days in jail and three years probation. During the plea colloquy, the…
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PER CURIAM.
Eduardo Aparicio appeals the denial of his dual motion to vacate his conviction and plea and motion for new trial filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.
In 1998, Aparicio pled nolo con-tendere to kidnapping Mildred Gonzalez on August 6, 1998. Aparicio’s plea was accepted by the trial court pursuant to a plea colloquy in which he was affirmatively advised by the trial court that if he was not a United States citizen, he could be subjecting himself to deportation. See Fla. R.Crim. P. 3.172(c)(8).
Aparicio was thereafter sentenced to 364 days in jail and three years probation in accordance with the plea agreement. By his motion to vacate, Aparicio nevertheless contends that he is entitled to relief under Florida Rule of Criminal Procedure 3.850 because he was affirmatively misadvised by his counsel that if he accepted the plea and a 364-day sentence, there would be no immigration consequences. Aparicio has served his sentence in full, but now wishes to vacate his conviction and plea because he wants to apply for U.S. citizenship and also visit his son in Cuba. He avers, based upon an affidavit of immigration counsel in the record, that if he proceeds toward either goal he will be at least detained. He thus argues that the denial of his motion, which was done without an evidentiary hearing, was error because he is “presently threatened with deportation [as a result of his] plea.” See Peart v. State, 756 So. 2d 42, 46 (Fla.2000) (“in order for a defendant to establish a prima facie case for relief, the defendant must be threatened with deportation resulting from the plea”).
We disagree. Our case law is clear that it is not the possibility of immigration consequences, but rather “the institution of imminent deportation proceedings by the Immigration and Naturalization Service against a defendant, as a result of entering a plea,” that constitutes “facts sufficient to establish a prima facie case for relief.” See Kindelan v. State, 786 So. 2d 599, 599-600 (Fla. 3d DCA 2001). Aparicio’s motion is therefore premature.
For the foregoing reasons, we affirm the judgment of the trial court without prejudice to Aparicio to re-raise his grounds for. relief at such time as it may be appropriate.
Affirmed.
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State v. Owran Green, 944 So. 2d 208 (Fla. 2006)…hat a motion to withdraw a plea which alleged that an immigration attorney advised the defendant that he would be subject to deportation if he applied for residency did not state a prima facie case for relief. Id. at 258; see also Aparicio v. State, 893 So. 2d 630, 631 (Fla. 3d DCA 2005) (ruling premature a motion to withdraw a 1998 plea alleging that defense was advised by immigration counsel that if he applied for citizenship or tried to visit his son in Cuba he would at least be detained); Wigley v. State,…
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Jules v. State, 233 So. 3d 1196 (Fla. 3d DCA 2017)…tablished in Green), “the only valid advice” the attorney would have provided was that Jules “didn’t have a ripe postcon-viction claim until he was facing imminent deportation proceedings. ...” Jules relies for this proposition on Aparicio v. State, 893 So. 2d 630 (Fla. 3d DCA 2005) (abrogated by Green, as recognized in State v. Gaston, 960 So. 2d 803 (Fla. 3d DCA 2007)). That reliance, however, is misplaced. This court in Aparicio followed the standard established in Peart, and correctly stated the law as it…
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State v. Gaston, 911 So. 2d 257 (Fla. 3d DCA 2005)…ase for relief, because “advising a defendant that a conviction constitutes grounds for exclusion from the United States is not the same as being threatened with deportation as a result of a plea.” This holding is dispositive. See Aparicio v. State, 893 So. 2d 630, 631 (Fla. 3d DCA 2005) (concluding that a defendant advised by an immigration attorney that he would be detained if he applied for citizenship failed to establish a prima facie case because it is not the possibility of immigration consequences, but…
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)