JORGE MORALES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jorge Morales appealed the denial of his motion for postconviction relief seeking to withdraw his guilty plea based on ineffective assistance of counsel for failure to warn him of deportation consequences. The court affirmed the denial, holding that Morales's claim was time-barred under the extended deadline established in State v. Green because his claim had already become time-barred under the prior Peart framework before Green was announced.
The court held that Morales is not entitled to relief because his claim became time-barred when the Peart window closed in 2002, and Green did not revive claims that were unquestionably time-barred at the time Green was announced. The court also affirmed the denial of the newly discovered evidence claim and found any ineffective assistance claim was time-barred.
[1] State v. …
[2] The two-year window period created by State v. …
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“a warning of 'adverse consequences' does not sufficiently comply with the warning required by Florida Rule of Criminal Procedure 3.172(c)(8)”
Establishes that the warning given in the plea colloquy was inadequate because it failed to specifically mention 'deportation' as required by rule and precedent
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMorales was charged with first-degree murder and entered a guilty plea to second-degree murder on May 16, 1996, receiving a 30-year sentence. During t…
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COPE, J.
This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, seeking relief on a claim of failure to warn of deportation consequences of a guilty plea. We conclude that defendant-appellant. Jorge Morales is not entitled to relief under State v. Green, 944 So. 2d 208 (Fla.2006). The defendant was charged with first-degree murder. On May 16, 1996, the defendant entered into a guilty plea to the reduced charge of second-degree murder, and was sentenced to thirty years imprisonment.
During the plea colloquy, the court stated, “Do you understand that your plea today could have adverse consequences to your immigration status?” The defendant answered “yes.” This court has previously held that a warning of “adverse consequences” does not sufficiently comply with the warning required by Florida Rule of Criminal Procedure 3.172(c)(8). See Labady v. State, 783 So. 2d 275, 277 (Fla. 3d DCA 2001). That is so because the rule requires a warning regarding possible deportation consequences and in this case, as in Labady, the word “deportation” was never mentioned. In the present case, the trial court concluded, and we agree, that the warning was insufficient under Labady.
The trial court ruled, however, that the defendant’s claim was time-barred. In 1997, based on the 1996 plea in this case, the defendant was ordered to be deported. During the next two years, the defendant took no action to seek relief from his plea. The window for making a failure-to-warn claim reopened when the Florida Supreme Court announced Peart v. State, 756 So. 2d 42 (Fla.2000), and the window closed in 2002.
The defendant filed the present motion in 2007. The trial court concluded that the defendant was not entitled to submit his motion under the extended time limit of State v. Green, 944 So. 2d at 219, because the defendant’s claim had already become time-barred when the Peart window closed in 2002.
The trial court recognized that in Green, the Florida Supreme Court shortened the limitation period for making a claim of failure to warn of the possible deportation consequences of a plea, and created a new two-year window for making such claims. 944 So. 2d at 219. In the trial court’s view, the purpose of the two-year window established by Green was to protect defendants whose claims had not yet expired under Peart, but would be time-barred under the new, shorter limitation period established by Green. The trial court ruled that where a defendant’s claim had become time-barred under Peart, the Green decision did not revive it.
We agree. Our court has held that “Green did not revive ... unadjudicated claims that unquestionably were time-barred at the time Green was announced .... ” State v. Freijo, 987 So. 2d 190, 191 (Fla. 3d DCA 2008). We certify that we have passed on the same question of great public importance that was stated in Freijo:
WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 So. 2d 208 (Fla.2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA?
We also affirm the portion of the order which denied the claim alleging newly discovered evidence. We concur with the trial court that the evidence did not qualify as being newly discovered. See MacFarland v. State, 929 So. 2d 549 (Fla. 5th DCA 2006). To the extent that the defendant is alleging that his trial counsel was ineffective at the time of the plea in 1996, the claim is time-barred.
Affirmed; question certified.
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Canseco v. State, 52 So. 3d 575 (Fla. 2010)…ever, open a new two-year window for the filing of such motions by defendants with over two years of actual knowledge of the immigration consequences of the challenged plea before the filing of the motion to vacate.”); and again in Morales v. State, 988 So. 2d 705, 706 (Fla. 3d DCA 2008) (holding that where a defendant’s claim became time-barred under Peart, Given did not revive it). The Fourth District Court of Appeal reached the same conclusion in Pena v. State, 980 So. 2d 542 (Fla. 4th DCA 2008). In Pena,…
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Nigel A. Whilby v. State, 992 So. 2d 871 (Fla. 5th DCA 2008)…PER CURIAM. AFFIRMED. See State v. Green, 944 So. 2d 208 (Fla.2006); Morales v. State, 988 So. 2d 705 (Fla. 3d DCA 2008); State v. De Armas, 988 So. 2d 156 (Fla. 3d DCA 2008); Prieto v. State, 989 So. 2d 688 (Fla. 4th DCA 2008); Pena v. State, 980 So. 2d 542 (Fla. 4th DCA 2008). PALMER, C.J., GRIFFIN and LAWSON, JJ., concur.…
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Lopez v. State, 12 So. 3d 849 (Fla. 3d DCA 2009)…rtation pri- or to the filing date of [Pearf]” had two years from the decision’s filing date — -April 13, 2000 — to seek withdrawal of his plea. (Emphasis added.) For those defendants, the Peart window closed on April 18, 2002. See Morales v. State, 988 So. 2d 705 (Fla. 3d DCA 2008) (holding that defendant who had notice of removal proceedings in 1997 was time-barred to seek withdrawal of his plea after April 2002). A defendant who discovered a threat of deportation after April 13, 2000, had “two years from t…
Authorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- State v. Freijo, 987 So. 2d 190 (Fla. 3d DCA 2008)
- Antwain Mitchell v. State, 783 So. 2d 275 (Fla. 5th DCA 2000)
- Lifton Robinson, Jr. v. State, 929 So. 2d 549 (Fla. 1st DCA 2006)
- MacFARLAND v. State, 929 So. 2d 549 (Fla. 5th DCA 2006)