NELSON A. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the summary denial of a motion to vacate a guilty plea based on lack of deportation warning and remanded for the trial court to allow amendment of the motion and proper consideration under established standards.
A defendant seeking to vacate a plea based on lack of deportation warning must allege that he would not have entered the plea if informed of deportation consequences, state how he will prove the warning was not given, and allege he was not otherwise subject to deportation, but the trial court must allow at least one opportunity to amend before denying the motion.
[1] A defendant seeking to vacate a guilty plea based on inadequate deportation warning must be given at least one opportunity to amend a deficient motion before the trial co…
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Join FLexlaw to unlock all legal intelligenceNelson Williams appealed the summary denial of his motion to vacate his guilty plea, claiming he was not advised of the deportation consequences of th…
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The defendant appeals the summary denial of his motion to vacate his plea, based on allegations that he was not advised of the deportation consequences of the plea. In State v. Green, 944 So.2d 208, 218 (Fla.2006), the Florida Supreme Court reiterated requirements that a defendant: (1) allege and prove that he or she would not have entered the plea if informed of the possibility of deportation, and (2) state in the Rule 8.850 motion how he or she will prove that the immigration warning was not given. The defendant failed to comply with both of these requirements. In addition, the defendant failed to allege that he was not otherwise subject to deportation. See Sabnani v. State, 5 So.3d 808, 809 (Fla. 3d DCA 2009).
However, as to all three defects, remand is necessary for the trial court to provide the defendant with at least one opportunity to amend his motion to correct these defects if, in good faith, he can do so. See Buton v. State, 995 So.2d 1130, 1132 (Fla. 4th DCA 2008). To then deny the motion, the trial court must decide that the motion is legally insufficient, that the claims are conclusively refuted by the record and attach to the order portions of the record demonstrating this, or hold an evidentiary hearing on the motion. See Rodriguez v. *915 State, 954 So.2d 71, 73 (Fla. 4th DCA 2007).
Reversed and Remanded.
FARMER, TAYLOR and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- Bergeron v. State, 995 So. 2d 1130 (Fla. 4th DCA 2008)
- Ehoud Buton v. State, 995 So. 2d 1130 (Fla. 4th DCA 2008)
- Rajkumar Sabnani v. State, 5 So. 3d 808 (Fla. 3d DCA 2009)
- Rodriguez v. State, 954 So. 2d 71 (Fla. 4th DCA 2007)