KEYION GALE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed the denial of a Rule 3.850 motion to vacate a no contest plea because the motion was filed outside the two-year deadline and Padilla v. Kentucky has no retroactive effect.
A Rule 3.850 motion to vacate a plea based on failure to advise of deportation consequences must be filed within two years after judgment becomes final, and Padilla v. Kentucky does not apply retroactively to pleas entered before that decision.
[1] A defendant seeking to withdraw a plea because the trial court failed to advise of deportation consequences must file a Rule 3.850 motion within two years after judgment…
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Join FLexlaw to unlock all legal intelligenceKeyion Gale entered a no contest plea on May 9, 2009, and filed a Rule 3.850 motion on July 12, 2011, claiming the trial court failed to inform him of…
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Keyion Gale appeals from an order denying as untimely his Florida Rule of Criminal Procedure 3.850 motion to vacate his no contest plea, which was entered on May 9, 2009. The postconviction motion, which was filed on July 12, 2011, claimed that the trial court failed to inform Gale of the deportation consequences of his plea as required by Florida Rule of Criminal Procedure 3.172(c)(8). We affirm the denial of this claim because it was not raised within the two-year period prescribed by Rule 3.850. See State v. Green, 944 So.2d 208, 219 (Fla.2006) (providing that “a defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy must file a rule 3.850 motion within two years after the judgment and sentence become final”). The postconviction motion also claimed that trial counsel failed to advise Gale that accepting a plea would subject him to deportation, citing to Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We affirm the denial of this claim as this court has found that Padilla has no retroactive effect, and thus does not apply to pleas taken before Padilla was announced. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).
Affirmed.
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Citator
Authorities Cited
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010)
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- Hernandez v. State, 61 So. 3d 1144 (Fla. 3d DCA 2011)