STATE OF FLORIDA, APPELLANT,
v.
JOHN D. FRASER, APPELLEE
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Florida appellate court reversed trial court's grant of post-conviction relief vacating a guilty plea for cocaine possession, holding that an unsworn Rule 3.850 motion must be dismissed and that a defendant seeking relief based on failure to advise of deportation consequences must demonstrate prejudice through proper sworn motion and evidentiary hearing.
An unsworn Rule 3.850 motion for post-conviction relief must be dismissed, and a defendant seeking to vacate a plea based on failure to advise of deportation consequences must file a sworn motion and present evidence of prejudice at an evidentiary hearing.
[1] A motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 must be sworn, and unsworn motions are properly dismissed.
[2] To obtain post-conviction relief based on trial court's failure to advise of deportation consequences of a plea, a defendant must demonstrate prejudice by establishing he…
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Join FLexlaw to unlock all legal intelligenceIn 1999, John Fraser, a Canadian citizen, pled guilty to cocaine possession and received two days time served. In 2006, more than seven years later, F…
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PER CURIAM.
In 1999, John Fraser pled guilty to possession of cocaine and was sentenced to two days time served. In 2006, more than seven years later, Fraser, a Canadian citizen, filed a 3.850 motion, wherein he sought to vacate his plea on the ground that the trial court never advised him of the possible deportation consequences of the plea. The motion was not sworn and was not accompanied by any affidavit or other attachments. Nonetheless, the trial court granted Fraser’s motion based solely on transcripts of the plea colloquy presented at a hearing on the motion and without taking any additional evidence. The State has appealed. We reverse.
Florida Rule of Criminal Procedure 3.850 mandates that motions for post-conviction relief be sworn. See Fla. R.Crim. P. 3.850(c). Unsworn motions are properly dismissed. See, e.g., Lawson v. State, 754 So. 2d 86 (Fla. 4th DCA 2000). Further, to be entitled to postconviction relief as a consequence of the trial court’s claimed failure to advise of the possible deportation consequences of a plea, a defendant must demonstrate prejudice, i.e., that he would not have entered into the plea had he been advised of the deportation consequences. See State v. Seraphin, 818 So. 2d 485, 490-91 (Fla.2002). Fraser could not have met his burden in this regard in the absence of both a sworn 3.850 motion and an evidentiary hearing. Fraser’s unsworn rule 3.850 motion should have been dismissed. Our reversal is without prejudice to Fraser’s right to file a new, sworn 3.850 motion within the time remaining.
Reversed and Remanded.
STONE, STEVENSON and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Seraphin, 818 So. 2d 485 (Fla. 2002)
- Lawson v. State, 754 So. 2d 86 (Fla. 4th DCA 2000)