ALFONSO OROZCO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alfonso Orozco appealed the denial of his motion to vacate his 1996 guilty plea for cocaine possession, claiming he was not advised of the immigration consequences. The Florida Third District Court of Appeal affirmed the trial court's denial but allowed Orozco to refile his motion if he could establish that the 1996 plea (not his expired visa) was the basis for his removal threat.
The trial court's denial of the motion to vacate was affirmed because the immigration notice did not establish a nexus between the 1996 plea and the removal threat. However, Orozco was permitted to refile with a properly verified motion establishing four elements: that the expired visa is not an independent basis for removal, that the 1996 plea subjects him to removal, that he lacked knowledge of consequences more than two years before filing, and that he would not have pleaded guilty if properly informed.
[1] A defendant seeking to vacate a plea based on undisclosed immigration consequences must plead and prove that the expired visa does not constitute an independently suffici…
[2] A defendant seeking to vacate a plea based on undisclosed immigration consequences must plead and prove that the plea and sentence subjects him to removal.
Previewing 2 of 4 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“we do so without prejudice to Orozco's right to plead under oath, and then to endeavor to prove eligibility for relief, under State v. Green, 944 So. 2d 208 (Fla.2006)”
Establishes that while affirming the denial, the court permits Orozco to refile his motion if he meets specific requirements.
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Join FLexlaw to unlock all legal intelligenceOrozco pleaded guilty to cocaine possession in 1996 with adjudication withheld and a suspended sentence. He later filed a motion to vacate the plea cl…
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SALTER, J.
Alfonso Orozco appeals the denial of his motion to vacate plea, conviction, and sentence regarding a 1996 charge for possession of cocaine. Orozco pleaded guilty to the charge, but adjudication was withheld and he received a suspended sentence. His motion claims that he was not properly advised of the immigration consequences of that plea, and that he has now become subject to deportation.
The trial court denied Orozco’s motion because the immigration notice to appear attached to the motion does not refer to the 1996 charge or sentence, referring instead to an allegation that he overstayed a B-2 tourist visa in 1994.
We affirm the trial court’s ruling, but we do so without prejudice to Orozco’s right to plead under oath, and then to endeavor to prove eligibility for relief, under State v. Green, 944 So. 2d 208 (Fla.2006). Specifically, to obtain such relief Orozco will need to plead and ultimately prove that: (1) his expired visa does not constitute an independently sufficient basis for his removal under applicable law, (2) the 1996 plea and suspended sentence subjects him to removal, (3) the plea colloquy and other sources of information did not make him aware of the adverse immigration consequences of the 1996 plea and suspended sentence more than two years before he filed his motion to vacate that plea, and (4) he would not have entered his voluntary plea in 1996 had he known the consequences applicable to his immigration status.
In this case, as in Green, we direct the appellant to file any verified pleading conforming to these requirements within sixty days after jurisdiction returns to the trial court.
Affirmed, but without prejudice to the filing and prosecution of a verified motion consistent with this opinion.
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Almanza v. State, 992 So. 2d 427 (Fla. 3d DCA 2008)…hat the deportation proceedings are based on the 1995 guilty plea, the defendant has not demonstrated prejudice by reason of the guilty plea. Therefore we affirm the trial court’s order denying postconviction relief. As was true in Orozco v. State, 987 So. 2d 816 (Fla. 3d DCA 2008), our ruling is without prejudice to the defendant to file a new motion alleging (if true) “that his expired visa does not constitute an independently sufficient basis for his removal under applicable law,” id. at 817, and pleading…
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Lopez v. State, 12 So. 3d 849 (Fla. 3d DCA 2009)…migration document, such as a visa, permitting him to remain in the United States. Because Lopez’s postconviction motion is untimely, there is no need for an evidentiary hearing regarding other potential reasons for deportation. See Orozco v. State, 987 So. 2d 816, 817 (Fla. 3d DCA 2008).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)