MARIO GASTON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a defendant need only allege that a guilty plea subjects them to deportation, not a specific threat of deportation, to establish prejudice.
[1] A defendant seeking to withdraw a guilty plea based on a trial court's failure to advise of deportation consequences must allege that the plea subjects them to deportatio…
[2] A defendant is not required to allege a specific threat of deportation to establish prejudice arising from a trial court's failure to advise of deportation consequences o…
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Join FLexlaw to unlock all legal intelligenceThe Third District Court of Appeal reversed a trial court's decision to allow a defendant to withdraw a decade-old guilty plea. The defendant claimed …
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[*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 defendant moved to withdraw a plea of guilty to a charge of carrying a concealed firearm entered a decade earlier. 911 So. 2d at 258. Gaston asserted that the trial court did not advise him that the plea might subject him to deportation and that he was subsequently advised by an immigration attorney that he would be subjected to deportation proceedings if he applied for residency. Id. The trial court granted the motion but the Third District reversed, concluding that Gaston had not stated a prima facie case by pleading that he was specifically threatened with deportation because of the plea. Id.
In Peart v. State, 756 So. 2d 42 (Fla.2000), we held that to establish prejudice arising from a trial court’s failure to advise a defendant of deportation consequences of a plea, a defendant “must be threatened with deportation resulting from the plea.” Id. at 46. However, in Green, we receded from this statement in Peart and held that “[hjenceforth, it is the fact that the plea subjects the defendant to deportation, rather than a specific threat of deportation, that establishes prejudice.” 944 So. 2d at 218. We also stated that courts should apply the new standard in cases now pending on this issue in the trial and appellate courts.
The decision below applied the Peart standard requiring an allegation of a specific threat of deportation rather than the requirement in Green that the defendant allege that the plea subjected the defendant to deportation. Accordingly, we quash the Third District decision in this case and remand for reconsideration in light of our decision in Green.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ„ concur.
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Cited By
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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 infor…
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Naser Yousef Ghneim v. State, 950 So. 2d 542 (Fla. 4th DCA 2007)…Green, 944 So. 2d 208 (Fla.2006), associated with the timeliness of the motion, and the threshold allegations necessary to support the claim, this case is reversed and remanded to the trial court for an evidentiary hearing. See also Gaston v. State, 950 So. 2d 397, 2007 WL 416088 (Fla. Feb. 8, 2007). KLEIN, SHAHOOD and MAY, JJ„ concur.…
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Rosendo G. Velazquez v. State, 963 So. 2d 295 (Fla. 4th DCA 2007)…otion was timely and met the threshold allegations necessary to support the claim, this case is reversed and remanded to the trial court for further proceedings. See Ghneim 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 hear…
Authorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- Owran Green v. State, 895 So. 2d 441 (Fla. 4th DCA 2005)
- State v. Gaston, 911 So. 2d 257 (Fla. 3d DCA 2005)