JACQUELINE RODRIQUES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the summary denial of appellant's motion to vacate her guilty plea for lack of immigration warning, but without prejudice, because the motion failed to meet the specific pleading requirements of State v. Green despite potentially meritorious underlying claims.
A motion to vacate a plea based on failure to give immigration warnings must comply with the specific pleading requirements of State v. Green, including allegations of how the warnings' absence can be proven and that deportability results solely from the conviction.
[1] A motion to vacate a guilty plea based on inadequate immigration warnings must specifically allege how the absence of warnings can be proven and that the defendant is dep…
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Join FLexlaw to unlock all legal intelligence“This does not conclusively prove that appellant understood the consequences.”
Court's analysis of whether a preprinted change of plea form alone sufficiently refutes claims of involuntary plea due to missing immigration warnings.
Appellant Rodriques entered a guilty plea on March 23, 2003 and later moved to vacate it, claiming the plea was involuntary due to the trial court's f…
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PER CURIAM.
We affirm the summary denial of the appellant’s motion to vacate plea, but we do so without prejudice.
Appellant claimed her plea entered on March 23, 2003 was involuntary, in part due to a failure of the court to give any immigration warning as to the consequences of the plea. The lower court attempted to refute the allegation by attaching the preprinted change of plea form, without more. This does not conclusively prove that appellant understood the consequences. See Hen Lin Lu v. State, 683 So. 2d 1110 (Fla. 4th DCA 1996). Had the motion been legally sufficient, we would have been compelled to reverse.
However, the motion fails to meet the specific pleading requirements of State v. Green, 944 So. 2d 208 (Fla.2006), insomuch as it fails to make any allegation as to how the appellant could prove the warnings were not given and fails to make any allegation that the appellant is deportable solely due to the conviction challenged herein. Absent such specific allegations in the sworn motion, the pleading is legally insufficient and should have been dismissed without prejudice, as there remains time under Green for a timely motion. Because time remains under Green, we do not command appellant to file an amended motion within any given period of time, though we note the time constraints under Green will apply.
SHAHOOD, C.J., POLEN and FARMER, JJ., concur.
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Dumenigo v. State, 988 So. 2d 1201 (Fla. 3d DCA 2008)…eto’s continued application); see also Forrest v. State, 988 So. 2d 38, 40 (Fla. 4th DCA 2008) (observing that the burden was on the movant to establish that the plea in the case under attack was the only basis for deportation.); Rodrigues v. State, 980 So. 2d 1203, 1204 (Fla. 4th DCA 2008) (concluding “the motion fails to meet the specific pleading requirements of State v. Green, 944 So. 2d 208 (Fla.2006), insomuch as it fails to make any allegation as to how the appellant could prove the warnings were not gi…
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Castrillon v. State, 8 So. 3d 1223 (Fla. 3d DCA 2009)…ant leave to file an amended motion within thirty days of the issuance of our mandate, see Spera v. State, 971 So. 2d 754 (Fla.2007),* which deadline may be extended, if necessary, for good cause shown. See Fla. R.Crim. P. 3.050; Rodriques v. State, 980 So. 2d 1203, 1204 (Fla. 4th DCA 2008). The amended motion will relate back to the date of filing the original motion. Affirmed. * The Florida Supreme Court has indicated that where, as here, the motion is facially insufficient but the insufficiency can be cu…
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Venta v. State (Fla. 3d DCA 2008)…s motion fails to allege that the conviction in this case is the sole basis for his deportation as required under State v. Green, 944 So. 2d 208 (Fla.2006). See, e.g., Dumenigo v. State, 988 So. 2d [*255] 1201 (Fla. 3d DCA 2008); Rodriques v. State, 980 So. 2d 1203 (Fla. 4th DCA 2008). Accordingly, we affirm the order under review, but remand for the trial court to give defendant an opportunity to file an amended motion correcting the deficiency, if possible. Spera v. State, 971 So. 2d 754 (Fla.2007). Affi…
Authorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- HEN LIN LU v. State, 683 So. 2d 1110 (Fla. 4th DCA 1996)