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Postconviction motion based on court's failure to advise of deportation consequences of plea must allege that the plea was the only basis for deportation  [Added 7/21/08]

    Convicted Defendant filed a motion for postconviction relief pursuant to Fla.R.Crim.P. 3.850, alleging that his plea was involuntary because the trial court did not advise him that the plea may subject Defendant to deportation.  The trial court summarily denied the motion.  Defendant appealed.

    The Fourth DCA's opinion addressed several issues.  One of them was the requirements of this type of claim.  The trial court had denied the motion "finding that it was insufficient as it failed to allege that the plea in this case was the sole basis upon which [Defendant] was subject to deportation."  The appellate court agreed.  "[T]o state a sufficient claim the movant must allege that he is subject to deportation based solely on the plea under attack.  See State v. Seraphin, 818 So.2d 485, 488-89 (Fla. 2002) (explaining that to establish prejudice in this type of claim the motion must show that the movant would not have entered the plea if properly advised).  The burden is on the movant to establish that the plea in the case under attack is the only basis for deportation.  Only then can the movant show prejudice resulting from the failure to advise of deportation consequences in the case under attack."  (Emphasis by court.)

    The appeals court remanded for the trial court to give Defendant an opportunity to amend his motion, under Spera v. State, 971 So.2d 754 (Fla. 2007).  Forrest v. State, ___ So.2d ___ (Fla. 4th DCA, No. 4D07-4831, 7/9/2008), 2008 WL 2663770.

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