THE STATE OF FLORIDA, APPELLANT,
v.
MARIO GASTON, APPELLEE
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The State appeals from an order allowing Gaston to withdraw a guilty plea entered over ten years earlier based on his claim that he was not advised of potential deportation consequences. The court reverses, holding that mere advice from an immigration attorney about potential deportation consequences does not establish a prima facie case for withdrawal of a guilty plea.
The court holds that it is not the possibility of immigration consequences, but rather imminent deportation proceedings that support relief for withdrawal of a guilty plea. Advice from an immigration attorney that a conviction might subject the defendant to deportation does not establish a prima facie case for relief.
[1] A defendant seeking to withdraw a plea based on a failure to advise of potential deportation must establish a prima facie case for relief.
[2] Advice from an immigration attorney regarding potential excludability or detention upon applying for immigration status does not, alone, establish a prima facie case for…
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the legal distinction between potential immigration consequences and actual deportation threat
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Join FLexlaw to unlock all legal intelligenceIn 1994, Gaston pled guilty to carrying a concealed firearm. Adjudication was withheld and he received probation for three months with fifty hours of …
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WELLS, J.
The State of Florida appeals from an order permitting Mario F. Gaston to withdraw a plea entered over ten years ago based on Gaston’s claim that he was not advised that his plea might subject him to deportation. Because Gaston failed to make a 'prima facie case for relief, we reverse.
In 1994, Gaston pled guilty to a single charge of carrying a concealed firearm. Adjudication was withheld and Gaston was placed on probation for three months with a special condition of fifty hours of community service. A little over ten years later, Gaston filed the instant motion to withdraw his plea claiming that his plea was involuntary because the trial court failed to advise him that his plea might subject him to deportation1 and because he has been advised by an immigration attorney that if he applied for residency, he would be subjected to deportation proceedings. The motion was granted; we reverse.
In Kindelan v. State, 786 So. 2d 599, 600 (Fla. 3d DCA 2001), we held that following application for adjustment of immigration status, advice from INS of excludability from the United States due to a conviction fails to establish a prima facie case 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 rather imminent deportation proceedings that support relief); Saldana v. State, 786 So. 2d 643, 645 (Fla. 3d DCA 2001) (concluding that issuance of a detainer by INS notifying initiation of investigation did not establish a prima facie case for relief). The order granting Gaston’s motion to withdraw plea is, therefore, reversed.
We also certify conflict with Green v. State, 895 So. 2d 441 (Fla. 4th DCA 2005), which is presently pending in the Florida Supreme Court (Case No. SC05-687) on conflict review.
. Due to the passage of time no transcript of the plea hearing exists.
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State v. Owran Green, 944 So. 2d 208 (Fla. 2006)…District ruled insufficient a motion to withdraw a 1987 plea alleging that when Kindelan “applied to adjust his immigration status, INS advised him that he was excludable from the United States due to his conviction.” Id. at 600. In State v. Gaston, 911 So. 2d 257 (Fla. 3d DCA 2005), notice invoking discretionary review filed, No. SC05-1901 (Fla. Oct. 14, 2005),3 in which the Third District certified conflict with Green, the court ruled that a motion to withdraw a plea which alleged that an immigration attorn…
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Gaston v. State, 950 So. 2d 397 (Fla. 2007)…[*398] PARIENTE, J. We have for review State v. Gaston, 911 So. 2d 257 (Fla. 3d DCA 2005), in which the Third District Court of Appeal certified conflict with Green v. State, 895 So. 2d 441 (Fla. 4th DCA 2005), quashed, 944 So. 2d 208 (Fla.2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. In Gaston, the…
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State v. Gaston, 960 So. 2d 803 (Fla. 3d DCA 2007)…WELLS, J. This case is before us on remand for reconsideration following the Florida Supreme Court’s decision in Gaston v. State, 950 So. 2d 397 (Fla.2007). In State v. Gaston, 911 So. 2d 257 (Fla. 3d DCA 2005), this court reversed a trial [*804] court order vacating a plea allegedly entered in violation of Florida Rule of Criminal Procedure 3.172(c)(8), which requires trial judges to inform those intending to plead guilty or nolo conten…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kindelan v. State, 786 So. 2d 599 (Fla. 3d DCA 2001)
- Saldana v. State, 786 So. 2d 643 (Fla. 3d DCA 2001)
- Aparicio v. State, 893 So. 2d 630 (Fla. 3d DCA 2005)
- Owran Green v. State, 895 So. 2d 441 (Fla. 4th DCA 2005)