THE STATE OF FLORIDA, APPELLANT,
v.
GUSTAVO VEGA, APPELLEE
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The court held that the trial court erred in summarily granting the defendant's motion to vacate without an evidentiary hearing when the record did not conclusively refute the defendant's claim.
The defendant pled guilty to possession of cannabis, adjudication was withheld, and he received probation. He later filed a motion to vacate his convi…
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SUAREZ, J.
The State of Florida seeks to reverse the trial court’s summary grant of Gustavo Vega’s post-conviction motion to vacate his conviction. We reverse and remand for an evidentiary hearing.
Vega was charged in 1989 with possession of cannabis. In 1990, Vega pled guilty, adjudication was withheld and he received probation. In 2007, Vega filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 to vacate his conviction. Vega asserted that he was not informed of the deportation consequences of his plea, and that had he known of the risk of deportation at the time of the plea, he would not have entered into it. The transcript of the plea colloquy is unavailable. The trial court summarily granted the defendant’s motion to vacate without an evidentiary hearing.
The trial court should have held an evidentiary hearing. The rule provides only for a summary denial of a post-conviction motion if the record shows conclusively that the defendant is not entitled to relief. If it does not, an evidentiary hearing is required. See State v. Green, 944 So. 2d 208, 219 (Fla.2006) (holding that the trial court may summarily deny the post-conviction petition only if it attaches record proof that conclusively refutes one or more of the petitioner’s claims; otherwise, the defendant must receive an evidentiary hearing). Vega’s claim that he was not informed of the deportation consequences of his plea cannot be proven without an evidentiary hearing because the transcript of the plea colloquy was destroyed. An evidentiary hearing would allow the trial court to evaluate the State’s evidence, ascertain the veracity of Vega’s claim and determine whether or not he was actually prejudiced. We reverse the trial court’s order vacating the defendant’s plea and remand for an evidentiary hearing.
Reversed and remanded.
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State v. Williams, 127 So. 3d 890 (Fla. 1st DCA 2013)…850 motion because the “State was entitled to ... an evidentiary hearing to test De Armas’s eligibility to withdraw his plea” based on trial counsel’s alleged failure to properly warn of possible immigration consequences of his plea); State v. Vega, 983 So. 2d 748, 749 (Fla. 3d DCA 2008) (holding the trial court “should have held an evidentiary hearing” on the assertion in a Rule 3.850 motion that Vega was not informed of deportation consequences of his plea and noting that an “evidentiary hearing would allow…
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Lavontes McPHERSON v. State, 35 So. 3d 981 (Fla. 3d DCA 2010)…uld not be apparent on the face of the record, the issue would not have been cognizable on direct appeal and was properly raised in a rule 3.850 postconviction motion. Accordingly, we reverse and remand for an evidentiary hearing. See State v. Vega, 983 So. 2d 748 (Fla. 3d DCA 2008) (reversing the summary grant of a rule 3.850 motion and remanding for an evidentiary hearing, noting that the “rule provides only for a summary denial of a post-conviction motion if the record shows conclusively that the defendant…
Authorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)