ALBERTO DUMENIGO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alberto Dumenigo appealed an order denying his motion to vacate a 1997 guilty plea based on inadequate warnings about immigration consequences. The Florida Third District Court of Appeal affirmed, holding that because Dumenigo was independently deportable under a 1988 conviction, he could not establish prejudice from the failure to warn about the 1997 conviction's deportation consequences.
The court affirmed the denial of the motion to vacate, holding that a defendant cannot establish prejudice from failure to advise of deportation consequences on one criminal conviction if the defendant is otherwise subject to deportation pursuant to another criminal conviction. The court held that under Prieto v. State, the movant bears the burden of establishing that the plea under attack was the sole basis for deportation.
[1] A defendant seeking post-conviction relief for failure to advise of immigration consequences cannot prevail if the defendant is otherwise subject to deportation based on…
[2] A defendant seeking post-conviction relief for failure to advise of deportation consequences must specifically allege that the challenged conviction is the sole basis for…
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Join FLexlaw to unlock all legal intelligence“[Dumenigo] can not raise a claim that he was prejudiced by not being advised of deportation consequences on the criminal charge in 1997 since even if deportation consequence was established, he would have been subject to deportation on his other criminal charges.”
The trial court's reasoning that Dumenigo cannot establish prejudice from failure to warn about one conviction when independently deportable under another conviction.
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Join FLexlaw to unlock all legal intelligenceDumenigo entered a guilty plea in 1997. In his post-conviction motion, he claimed the plea was involuntary due to failure to warn of immigration conse…
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WELLS, Judge.
Alberto Dumenigo appeals from an order denying his Rule 3.850 motion to vacate a 1997 plea claiming the plea to have been involuntary for failure to warn of immigration consequences. We affirm.
Specifically, the motion to vacate plea, which was not attested to by Dumenigo, mentions no convictions other than the 1997 conviction at issue, and states only that the 1997 conviction “cause[s] Defendant prejudice, notwithstanding any other convictions.” Dumenigo s sworn declaration in support of the motion similarly makes no mention whatsoever of any other convictions. The state’s response states that, pursuant to section 237(a)(2)(e) of the Immigration and Nationality Act of 1952 (“INA”), Dumenigo is subject to deportation for a 1988 conviction, independent of his 1997 convictions. Dumenigo did not move for rehearing and never asserted to the trial court that he may not be subject to deportation for the 1988 conviction.
Accordingly, the trial court was entirely correct in its conclusion that “[Dumenigo] can not raise a claim that he was prejudiced by not being advised of deportation consequences on the criminal charge in 1997 since even if deportation consequence was established, he would have been subject to deportation on his other criminal charges.” See Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002)(holding that a defendant may not avail himself post-conviction relief for failure of the trial court to advise him/her of potential deportation consequences, if the defendant is otherwise subject to deportation pursuant to another criminal conviction).
In essence, Dumenigo argues that Prieto has no application post State v. Green, 944 So. 2d 208, 210 (Fla.2006). We disagree. See Ojurongbe v. State, 973 So. 2d 621, 623 (Fla. 3d DCA 2008) (recognizing Prieto’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 given and fails to make any alie-gation 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”).
Accordingly, we affirm the order under review without prejudice to filing an amended motion addressing the 1988 conviction and Prieto’s application to it.
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Bojan Nastasic v. State, 11 So. 3d 418 (Fla. 2d DCA 2009)…he proposition that Nastasic could not demonstrate the required prejudice because the documents attached to his motion established that he was deportable based on convictions other than the ones in this case. But in a recent case, Dumenigo v. State, 988 So. 2d 1201 (Fla. 3d DCA 2008), the court allowed a defendant in similar circumstances to amend his motion. Dumenigo had been convicted of felonies in 1988 and 1997. He sought to withdraw his plea for the 1997 offense based on rule 3.172(c)(8). The Third Distri…
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Alfonso v. State, 35 So. 3d 978 (Fla. 3d DCA 2010)…ted in the majority opinion, we have decisions which say that a defendant must allege that he is subject to deportation based only on the conviction he or she is challenging. Sabnani v. State, 5 So. 3d 808, 809 (Fla. 3d DCA 2009); Dumenigo v. State, 988 So. 2d 1201, 1202 (Fla. 3d DCA 2008). It should also be pointed out, however, that we clarified this rule in Macias v. State, 29 So. 3d 1182 (Fla. 3d DCA 2010). By way of background, in Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002), this court held that a…
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State v. Gutierrez, 45 So. 3d 946 (Fla. 3d DCA 2010)…n a failure to warn in one case but not if there has been such a failure to warn in two cases. The State’s argument is incorrect. The State relies on this court’s decisions in State v. Sinclair, 995 So. 2d 621 (Fla. 3d DCA 2008); Dumenigo v. State, 988 So. 2d 1201 (Fla. 3d DCA 2008); and Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002). In each of those cases, the defendant had two prior convictions. The defendant was seeking to vacate one of the convictions because of a failure to warn of deportation conse…
Previewing 3 of 10 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)
- Forrest v. State, 988 So. 2d 38 (Fla. 4th DCA 2008)
- Prieto v. State, 824 So. 2d 924 (Fla. 3d DCA 2002)
- Carr v. State, 973 So. 2d 621 (Fla. 3d DCA 2008)
- Rodriques v. State, 980 So. 2d 1203 (Fla. 4th DCA 2008)