STATE OF FLORIDA, APPELLANT,
v.
FITZROY BURTON, APPELLEE
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The State appeals a trial court's summary grant of defendant Burton's motion to set aside his guilty plea, claiming he was not informed of potential deportation consequences. The First District reversed, holding that Burton's motion was facially insufficient because it failed to allege he would not have pleaded guilty if advised of the deportation risk, and remanded for proper proceedings.
A trial court errs in summarily granting a motion to set aside a plea when the motion is facially insufficient because it fails to allege that the defendant would not have entered the plea if advised of the deportation consequences. The trial court may summarily deny a facially sufficient motion only if it can attach documents conclusively refuting the defendant's entitlement to relief; otherwise, an evidentiary hearing is required.
[1] A motion to set aside a conviction and withdraw a plea based on counsel's failure to advise of potential deportation consequences is facially insufficient if it does not…
[2] A defendant seeking to withdraw a plea due to lack of advice regarding deportation must allege that the defendant would not have entered the plea had they been properly a…
Previewing 2 of 5 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“Burton's motion was facially insufficient because he failed to allege an essential element necessary to entitle him to relief: namely that he would not have entered the plea if advised that it could result in deportation.”
Establishes the required element that must be pleaded in a motion claiming ineffective assistance for failure to advise of deportation consequences
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFitzroy Burton, a non-citizen, entered a guilty plea without his counsel advising him that the plea could subject him to deportation. The plea colloqu…
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The State appeals the trial court’s summary grant of Fitzroy Burton’s Motion to Set Aside Conviction and Withdraw Plea pursuant to Florida Rule of Criminal Procedure 3.850. We conclude that the trial court erred in summarily granting Burton’s motion, and therefore, reverse and remand for further proceedings.
■ In his post-conviction motion, Burton asserted that his plea was not knowing and *855voluntary because his counsel failed to advise him that because he was not a United States citizen, his plea could subject him to deportation. In support of his motion, Burton cited the transcript of his plea colloquy which included no discussion of Burton’s citizenship or naturalization status or of the possibility that his plea might subject him to deportation.
Based on Burton’s motion and the record before it, the trial court summarily granted Burton’s motion. This was error. Burton’s motion was facially insufficient because he failed to allege an essential element necessary to entitle him to relief: namely that he would not have entered the plea if advised that it could result in deportation. State v. Green, 944 So.2d 208, 218 (Fla.2006). Because Burton’s motion is facially insufficient, on remand he should be granted leave to amend his motion within a reasonable time, if he can do so in good faith. See Spera v. State, 971 So.2d 754 (Fla.2007).
However, even if Burton is able to present a facially sufficient motion, the trial court may summarily deny the motion if it can attach documents that conclusively refute his entitlement to relief. See, e.g., Green, 944 So.2d at 219; State v. Gonzalez, 787 So.2d 917 (Fla. 3d DCA 2001) (reversing trial court’s summary grant of post-conviction relief where “defendant was not prejudiced by trial court’s failure to specifically inform him that his plea may subject him to deportation” where the plea agreement provided this information, defendant read the agreement, and trial court during plea colloquy established that defendant entered into plea freely and with understanding of plea agreement); Joseph v. State, 782 So.2d 895, 896 (Fla. 2d DCA 2001) (“A plea form containing the deportation warning together with record documentation that the defendant has intelligently consumed the written information contained on the form and understood it is ... sufficient [to conclusively refute the claim].”). If, on the other hand, the trial court is unable to attach portions of the record which conclusively refute his claims, Burton must receive an evidentiary hearing. Green, 944 So.2d at 219.
REVERSED and REMANDED.
WOLF, PADOVANO, and ROWE, JJ, concur.
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Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- State v. Gonzalez, 787 So. 2d 917 (Fla. 3d DCA 2001)
- Roody Joseph v. State, 782 So. 2d 895 (Fla. 2d DCA 2001)