ROSENDO G. VELAZQUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Velazquez appeals the summary denial of his Rule 3.850 post-conviction motion alleging inadequate plea colloquy regarding deportation consequences. The court reverses and remands, finding the motion met threshold requirements and that the trial court failed to provide record attachments conclusively refuting the claims.
The court holds that Velazquez's motion set forth the requisite pleadings under State v. Green and met the threshold allegations necessary to support the claim. Therefore, the summary denial was improper, and the case must be reversed and remanded for further proceedings, including a potential evidentiary hearing unless the trial court finds the allegations conclusively refuted by record attachments.
“Appellant set forth the requisite pleadings provided in State v. Green, 944 So. 2d 208, 219 (Fla.2006), in his motion for post-conviction relief.”
Establishes that Velazquez's motion met the threshold pleading requirements necessary to avoid summary denial.
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Join FLexlaw to unlock all legal intelligenceVelazquez entered a guilty plea in the trial court. He filed a timely motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850…
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PER CURIAM.
Appellant, Rosendo Velazquez, appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.
Appellant set forth the requisite pleadings provided in State v. Green, 944 So. 2d 208, 219 (Fla.2006), in his motion for post-conviction relief. Specifically, appellant alleged that the trial court did not advise him of deportation consequences at the time of the plea; he submits that he would not have accepted the plea knowing it subjected him to deportation. Id. Further, the trial court did not provide record attachments that conclusively refuted appellant’s claims.
As appellant’s motion was timely and met the threshold allegations necessary to support the claim, this case is reversed and remanded to the trial court for further proceedings. See Ghneim v. State, 950 So. 2d 542, 543 (Fla. 4th DCA 2007); see also Gaston v. State, 950 So. 2d 397 (Fla.2007). On remand, the trial court may again deny this motion if the allegations are conclusively refuted by the record attachment. Martinez v. State, 842 So. 2d 900 (Fla. 2d DCA 2003). Otherwise, the trial court must conduct an evidentiary hearing on the claim, at which the court may consider any other defenses the state might raise, such as laches.
STONE, WARNER and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- Martinez v. State, 842 So. 2d 900 (Fla. 2d DCA 2003)
- Gaston v. State, 950 So. 2d 397 (Fla. 2007)
- Naser Yousef Ghneim v. State, 950 So. 2d 542 (Fla. 4th DCA 2007)