RENE MORALES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rene Morales, a non-U.S. citizen, appealed the denial of his Rule 3.850 motion challenging his plea to drug possession charges based on ineffective assistance of counsel claims and alleged double jeopardy violations. The appellate court affirmed the trial court's partial grant of relief (vacating the double jeopardy violation count) but rejected Morales' request to withdraw his entire plea.
The court affirmed the trial court's decision to vacate Count II due to double jeopardy but rejected the request to withdraw the plea entirely or vacate Count I. The court held that Padilla does not apply retroactively to convictions final when Padilla was decided, and that the deportation warning under Florida Rule of Criminal Procedure 3.172(c)(8) cures any prejudice from failure to advise of immigration consequences.
[1] A trial court may amend a judgment to vacate a conviction that violates double jeopardy, even after accepting a negotiated plea.
[2] A defendant is not entitled to withdraw a plea solely because a conviction is vacated due to double jeopardy, especially when probation is imposed on a remaining convicti…
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Join FLexlaw to unlock all legal intelligence“Padilla does not apply retroactively to convictions that were final when Padilla was decided.”
Establishes the key holding that Padilla v. Kentucky does not provide grounds for relief on convictions already final at the time of that decision
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Join FLexlaw to unlock all legal intelligenceMorales, a Mexican national and non-U.S. citizen, entered a negotiated no contest plea on June 3, 2009 to possession with intent to sell or deliver ca…
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Rene Morales appeals the summary denial of his Rule 3.850 motion to vacate judgment and sentence and motion for rehearing. We affirm.
On June 3, 2009, appellant, a Mexican national and non-U.S. citizen, entered a negotiated no contest plea to possession with intent to sell or deliver cannabis (Count I), possession of more than 20 grams of cannabis (Count II), and possession of drug paraphernalia (Count III). The trial court accepted the plea, withheld adjudication of guilt, and placed appellant on two years of drug offender probation on counts I and II. On Count III, the trial court placed appellant on one year of drug offender probation concurrent with Counts I and II.
On June 9, 2010, appellant filed a Rule 3.850 motion to vacate judgment and sentence, claiming his counsel provided ineffective assistance of counsel in failing to advise him of adverse immigration consequences and failing to advise him that his convictions on Counts I and II constituted a double jeopardy violation. Appellant also asserted that the trial court should have allowed him to withdraw his plea because his convictions for possession of cannabis with intent to sell or deliver (Count I) and possession of more than twenty grams of cannabis (Count II) violate double jeopardy. Accepting the state’s concession of error as to the double jeopardy violation, the trial court amended the judgment and vacated Count II. We reject appellant’s contention that the trial court must also allow him to withdraw his plea and vacate the two-year drug probation sentence imposed on Count I.
We further reject appellant’s claim that his plea was involuntary pursuant to Padilla v. Kentucky, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Padilla does not apply retroactively to convictions that were final when Padilla was decided. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011); Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011); State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011); Barreneche v. State, 80 So.3d 455 (Fla. 1st DCA 2012).
Moreover, we have held that the deportation warning of Florida Rule of Criminal Procedure Rule 3.172(c)(8) cures any prejudice. Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010); accord Castano v. State, 65 So.3d 546, 547-48 (Fla. 5th DCA 2011), review granted, 81 So.3d 413 (Fla.2012); Batista v. State, 90 So.3d 373 (Fla. 1st DCA 2012). Contra Hernandez, 61 So.3d at 1147-48; O’Neill v. State, — So.3d -(Fla. 2d DCA 2012).
Affirmed.
STEVENSON, TAYLOR and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (12 total)
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010)
- Hernandez v. State, 61 So. 3d 1144 (Fla. 3d DCA 2011)
- Edilberto Barrios-Cruz v. State, 63 So. 3d 868 (Fla. 2d DCA 2011)
- Gandy v. State, 81 So. 3d 414 (Fla. 2012)
- Flores v. State, 57 So. 3d 218 (Fla. 4th DCA 2010)
- Emerson Davis v. State, 69 So. 3d 315 (Fla. 4th DCA 2011)
- State v. Shaikh, 65 So. 3d 539 (Fla. 5th DCA 2011)
- Castano v. State, 65 So. 3d 546 (Fla. 5th DCA 2011)
- Calhoun v. Garrett, 81 So. 3d 413 (Fla. 2012)
- Barreneche v. State, 80 So. 3d 455 (Fla. 1st DCA 2012)