FRANKLIN MANUEL VALDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Franklin Valdez appeals the denial of his motion to vacate a 1993 guilty plea for failure to provide the required immigration consequences warning. The trial court erred in treating a 1996 probation violation plea colloquy—which did include the warning—as curing the defect in the original 1993 plea that triggered his 2006 DHS deportation notice.
The court reversed and remanded for an evidentiary hearing. The 1996 probation violation plea and its accompanying warning cannot cure the defective 1993 plea because a probation violation is not an independent offense and does not independently subject a defendant to deportation. The 1993 plea, not the 1996 plea, was the basis for the DHS removability notice.
[1] A trial court's failure to provide the "subject to deportation" warning required by Florida Rule of Criminal Procedure 3.172(c)(8) during a plea colloquy renders the plea…
[2] A subsequent plea colloquy concerning a violation of probation does not cure a prior defective plea for which a deportation warning was omitted, if the deportation is bas…
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Join FLexlaw to unlock all legal intelligence“It is that DHS notice — and not the warning provided as part of the 1996 violation of probation plea colloquy — that was the basis for Valdez's motion to vacate plea. And it was the 1993 plea, not the 1996 plea, which subjected Valdez to deportation.”
Establishes that the 1996 warning is legally irrelevant because the deportation consequences stem from the 1993 plea
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Join FLexlaw to unlock all legal intelligenceValdez entered a guilty plea in 1993 without receiving the mandatory Florida Rule of Criminal Procedure 3.172(c)(8) warning regarding possible deporta…
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Franklin Valdez appeals a trial court order denying his 2008 motion to vacate a 1993 plea under Florida Rule of Criminal Procedure 3.850. During the original plea colloquy, the trial court did not provide the “subject to deportation” warning required by Florida Rule of Criminal Procedure 3.172(c)(8). In denying the motion to vacate plea in 2008, the trial court reasoned that the motion was time-barred 1 because Valdez had received the requisite warning in a 1996 plea colloquy. That colloquy, however, occurred in connection with a violation of probation hearing — a separate plea (though the probation in question was part of the sentence entered following the 1993 plea), and one which apparently has not resulted in any notice for deportation.
We reverse and remand for an evi-dentiary hearing. The existing record does not demonstrate that the United States Department of Homeland Security (“DHS”) notice of removability served on Valdez in 20062 is based on any matter other than the original 1993 plea and conviction. It is that DHS notice — -and not the warning provided as part of the 1996 violation of probation plea colloquy — that was the basis for Valdez’s motion to vacate plea. And it was the 1993 plea, not the 1996 plea, which subjected Valdez to deportation.
Under Florida law, Valdez’s violation of probation was “not itself an independent offense punishable at law in Florida.” Lambert v. State, 545 So.2d 838, 841 (Fla. 1989). Unless the State establishes otherwise on remand, it does not appear that Valdez’s entry of a plea in 1996 regarding the probation violation provides any inde*1169pendent basis for deportation by DHS.3 It follows that a Rule 3.172(c)(8) warning regarding the possible immigration consequences of that plea would not cure the defective 1993 plea at issue here.
Reversed and remanded for further proceedings in accordance with this opinion.
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Citator
Cited By
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Rajkumar Sabnani v. State, 5 So. 3d 808 (Fla. 3d DCA 2009)…ng at a later probation violation hearing does not pertain to an independent basis for deportation by the U.S. Department of Homeland Security and therefore does not cure the allegedly defective plea to the original criminal charge. Valdez v. State, 1 So. 3d 1167 (Fla. 3d DCA2009). We therefore reverse the order of denial in this case and remand the motion to the trial court with instructions. On remand, the trial court should dismiss Sabnani’s original motion with leave to amend. If [*809] Sabnani wishes…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- State v. Freijo, 987 So. 2d 190 (Fla. 3d DCA 2008)
- State v. de Armas, 988 So. 2d 156 (Fla. 3d DCA 2008)