MARIO JACK DELAROSA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Mario Jack Delarosa appeals the denial of his Rule 3.850 motion for post-conviction relief, claiming his guilty plea was invalid due to inadequate advisories about sentence enhancements, time-served credit, and collateral consequences regarding visitation with his minor son. The court affirmed the denial, holding that the trial court properly found Delarosa was advised of direct consequences and that collateral consequences need not be disclosed.
The court affirmed the denial of the 3.850 motion. The trial court's factual findings that Delarosa was advised of enhancements and received no seven-year time-served credit were supported by competent, substantial evidence and are affirmed. Additionally, sexual offender/predator designation and Department of Corrections visitation restrictions are collateral consequences about which trial courts have no duty to advise defendants, so failure to warn does not render a plea involuntary.
[1] A trial court's factual findings made after an evidentiary hearing on a motion to vacate a sentence are subject to deferential appellate review if supported by competent,…
[2] A defendant must be advised of the direct consequences of a guilty plea, but not collateral consequences.
Previewing 2 of 5 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“A judge is required to inform a defendant only of the direct consequences of his [or her] plea and is under no duty to apprise him [or her] of any collateral consequences. A direct consequence is one that has a 'definite, immediate, and largely automatic effect on the range of the defendant's punishment.'”
Establishes the legal standard distinguishing direct from collateral consequences, which determines what a trial court must advise a defendant about during plea negotiations.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDelarosa pleaded guilty to unlawful sex with a minor. His trial attorney testified that sentence enhancements and their effects were discussed prior t…
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WELLS, Judge.
Mario Jack Delarosa appeals from an order following an evidentiary hearing, denying a Florida Rule of Criminal Procedure 3.850 motion in which he claimed: (1) that he was not advised that his sentence was subject to enhancement as a violent career criminal or as a habitual offender; (2) that his attorney misadvised him that he was to receive seven years’ credit for time served; and (3) that he was not advised that as a consequence of pleading guilty he would not be able to see his minor son. l^e affirm.
Delarosa’s trial attorney testified that sentence enhancements and their effect on Delarosa’s sentence were discussed with Delarosa prior to his plea. The attorney further testified that he did not advise Delarosa that he would receive seven years’ credit for time served as Delarosa claimed. This testimony is corroborated by the plea colloquy which affirmatively demonstrates that Delarosa knew about and understood applicable enhancements and that no seven year time served credit was offered, discussed, or agreed upon. We therefore affirm on these claims. See Nixon v. State, 857 So. 2d 172, 175 n. 7 (Fla.2003), reversed on other grounds, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004)(confirming that on review of an order denying a 3.850 motion after evidentiary hearing, appellate courts must defer to the trial court’s factual findings if supported by competent, substantial evidence).
We also reject Delarosa’s claim that his plea must be vacated because he was not advised of the ramifications of pleading guilty to unlawful sex with a minor with regard to either application of the sexual offender/sexual predator acts or limitations imposed on visitation with minors by the Department of Corrections. Designation as a sexual offender or predator is a collateral, not a direct, consequence of a guilty plea about which Delarosa did not have to be advised. State v. Partlow, 840 So. 2d 1040, 1043 (Fla.2003)(holding that the sexual offender registration-requirement is a collateral consequence of a plea to a sexual offense because the registration requirement has absolutely no effect on the range of the defendant’s punishment for the crime); Gunn v. State, 841 So. 2d 629, 631 (Fla. 2d DCA 2003)(confirming that designation as either a sexual offender or predator is a collateral consequence about which a defendant does not have to be advised at the time of a plea). Thus, failure to warn Delarosa about application of these acts does not render his plea involuntary.
Failure to warn Delarosa that the rules of the Department of Corrections regarding visitation may preclude him from visiting with his son also does not make his plea involuntary. See § 944.09(l)(n), Fla. Stat. (2004)(precluding visitation, absent special authorization, between minors and those convicted of enumerated sex crimes with a child under the age of sixteen). A trial court has a duty to ensure that a defendant understands the direct consequences of a plea, consequences that are definite, immediate and have a largely automatic effect on the range of a defendant’s punishment:
[A], judge is required to inform a defendant only of the direct consequences of his [or her] plea and is under no duty to apprise him [or her] of any collateral consequences. A direct consequence is one that has a ‘definite, immediate, and largely automatic effect on the range of the defendant’s punishment.’
Major v. State, 814 So. 2d 424, 431 (Fla.2002) (citation omitted). The rules of the Department of Corrections regarding visitation have no effect on the range of Delarosa’s punishment. Thus the failure to warn Delarosa of the consequences of these rules, like the failure to warn of the application of the sexual offender and predator acts, does not render his plea involuntary.
The order denying Delarosa’s 3.850 motion is therefore affirmed.
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Authorities Cited
- Florida v. Nixon, 543 U.S. 175 (U.S. 2004)
- Daron Merritt v. State, 814 So. 2d 424 (Fla. 2002)
- State v. Partlow, 840 So. 2d 1040 (Fla. 2003)
- Nixon v. State, 857 So. 2d 172 (Fla. 2003)
- Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)
- O'Neill v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)