RAIMUNDO GOMEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the appellant's motion for postconviction relief based on attorney misadvice regarding immigration consequences was untimely.
Appellant pled no contest to a drug offense and received a withhold of adjudication. Six years later, he discovered deportation was automatic despite …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Timeliness Of Postconviction Claims cases and more on FLexlaw
We affirm the denial of appellant’s untimely motion for postconviction relief. In it, appellant alleged that his attorney mi-sadvised him as to the consequences to his immigration status of his plea and sentence. He pled no contest to sale or delivery of controlled pills (MDMA, known as “ecstasy”) and received a withhold of adjudication with eighteen months of probation. When his green card, allowing him legal residency in this country, came up for renewal six years later, he discovered that, even though his attorney had advised him that a withhold of adjudication might prevent deportation, deportation for the crime was automatic, regardless of the withholding of adjudication. He moved for postconviction relief based upon his attorney’s misadvice, which the trial court denied.
His motion was untimely. See Marshall v. State, 983 So.2d 680, 682-84 (Fla. 4th DCA 2008) (time for bringing a postconviction ineffective assistance claim based upon misadvice of counsel commences on *445the date conviction and sentence becomes final); see also Gusow v. State, 6 So.3d 699, 705 (Fla. 4th DCA 2009) (same). Those cases apply the rule of State v. Green, 944 So.2d 208 (Fla.2006), which holds that a postconviction claim of an involuntary plea based upon failure to advise of deportation consequences must be brought within two years of the conviction becoming final. In Marshall, we found that the reasoning of Green should also apply in cases of misadvice.
In Marshall, we certified conflict with Rodriguez v. State, 824 So.2d 328 (Fla. 3d DCA 2002), and State v. Johnson, 615 So.2d 179 (Fla. 3d DCA 1993). This conflict has never been resolved, although Rodriguez and Johnson were both decided prior to Green, which we conclude controls this issue.
Affirmed.
WARNER, MAY and FORST, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Goddard v. State, 217 So. 3d 1105 (Fla. 2d DCA 2017)…1101(a)(48)(A) (defining “conviction” as including a withhold of adjudication when (i) “the alien has entered a plea of guilty” and “(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty”); Gomez v. State, 126 So. 3d 444, 444 (Fla. 4th DCA 2013) (noting that deportation for a controlled substance offense “was automatic, regardless of the withholding of adjudication”). Taking his assertions as true, as we are required to do, Mr. Goddard has made a sufficient showing…
-
Wallace v. State, 264 So. 3d 389 (Fla. 5th DCA 2019)
-
Kemar Hardware v. State, 185 So. 3d 530 (Fla. 3d DCA 2015)…ited Statés for the past ten years on'an expired visa. . Although I refer to a prior “conviction” I include a withhold of adjudication or other disposition, short of a conviction which still renders a defendant deportable. See e.g., Gomez v. State, 126 So. 3d 444 (Fla. 4th DCA 2013) (noting the fact defendant received a withhold of adjudication did not prevent defendant from being deportable). . Even the holdings of Forrest and Dumenigo have an exception. This Court hás previously held that even where there…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- Gusow v. State, 6 So. 3d 699 (Fla. 4th DCA 2009)
- Marshall v. State, 983 So. 2d 680 (Fla. 4th DCA 2008)
- State v. Johnson, 615 So. 2d 179 (Fla. 3d DCA 1993)
- Dudley Scott v. State, 824 So. 2d 328 (Fla. 3d DCA 2002)
- Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002)