ROBERTO MARTIN ALMANZA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Roberto Martin Almanza appealed the denial of his postconviction motion seeking to set aside a 1995 guilty plea for aggravated assault and carrying a concealed firearm due to the trial court's failure to warn him of deportation consequences. The appellate court affirmed the denial because the deportation proceedings were based solely on his expired visa status, not the underlying guilty plea, and therefore he failed to demonstrate prejudice.
The court affirmed the denial of postconviction relief because the defendant failed to demonstrate prejudice, as the deportation proceedings were based solely on his unauthorized immigration status (expired visa), not on the 1995 guilty plea. The court permitted the defendant to file a new motion if he could allege that his expired visa does not constitute an independently sufficient basis for removal.
[1] A defendant seeking to set aside a guilty plea based on a failure to warn of deportation consequences must demonstrate prejudice resulting from the plea.
[2] To establish prejudice for a failure to warn of deportation consequences, deportation proceedings must be based on the guilty plea.
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 affirm the denial of relief because the Notice to Appear is based solely on the allegation of the Immigration and Naturalization Service that defendant entered the United States "on or about March 29, 1991 as a nonimmigrant VISITOR FOR PLEASURE with authorization to remain in the United States for a temporary period not to exceed June 28, 1991; [and] ... remained in the United States beyond June 28, 1991 without authorization."”
Establishes the basis for affirming the denial—the deportation proceedings were grounded in visa violation, not the guilty plea.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1995, Almanza entered a guilty plea to aggravated assault with a firearm and carrying a concealed firearm, and was sentenced to two years of probat…
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COPE, J.
This is an appeal of an order denying a motion for postconviction relief in which defendant-appellant Roberto Martin Al-manza sought to set aside a plea on account of a failure to warn of deportation consequences. We affirm.
The defendant filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. He alleged that in 1995 he entered a guilty plea to the charges of aggravated assault with a firearm and carrying a concealed firearm. He was sentenced to two years of probation.
The defendant alleges that at the time he entered his guilty plea, the trial court failed to warn of possible deportation consequences as required by Florida Rule of Criminal Procedure 3.172(c)(8). The defendant states that in December 2007, he received a Notice to Appear for removal proceedings under section 240 of the Immigration and Nationality Act. He alleges that his motion for postconviction relief is timely under State v. Green, 944 So. 2d 208 (Fla.2006).
We affirm the denial of relief because the Notice to Appear is based solely on the allegation of the Immigration and Naturalization Service that defendant entered the United States “on or about March 29, 1991 as a nonimmigrant VISITOR FOR PLEASURE with authorization to remain in the United States for a temporary period not to exceed June 28, 1991; [and] ... remained in the United States beyond June 28, 1991 without authorization.” The Notice to Appear does not mention the 1995 guilty plea. Because it does not appear that 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 the other required elements of State v. Green.
Affirmed without prejudice to the filing and prosecution of a verified motion consistent with this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- Kristofer Louis-Gaston LaCARRERE v. Reilly, 987 So. 2d 816 (Fla. 3d DCA 2008)
- Orozco v. State, 987 So. 2d 816 (Fla. 3d DCA 2008)