sunEthics

Third DCA addresses when, in light of State v. Green, defendant may withdraw prior plea due to counsel's alleged failure to advise of possible immigration consequences of plea  [Added 7/29/08]

    Defendant entered a guilty plea and was convicted in 1995.  He was served with a deportation notice on November 8, 2002.  Under Peart v. State, 756 So.2d 42 (Fla. 2000), Defendant was required to file a motion under Fla.R.Crim.P. 3.850 to withdraw his plea prior to November 8, 2004, or his motion would be time-barred.  Defendant did not move to withdraw his plea until 2007.  Defendant urged that under State v. Green, 944 So.2d 208, his claim had been revived and thus was timely.  The trial court apparently agreed and vacated his conviction.  The state appealed.

    The Third DCA reversed the order vacating Defendant's conviction.  The court framed the issue presented as "whether the Florida Supreme Court’s decision in State v. Green, 944 So.2d 208 (Fla. 2006), revived certain categories of cases in which a defendant seeks to withdraw a prior plea because of the trial court’s alleged failure to advise the defendant of the possible immigration and deportation consequences of the plea."  The court's opinion traced the development of the law in this area and the purpose and effect of Green.  The court concluded that "Green did not revive claims previously adjudicated on the merits, or unadjudicated claims that unquestionably were time-barred at the time Green was announced" and reversed the order granting Defendant's motion to vacate his conviction.

    The appeals court also certified, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), that it had passed on the following question of great public importance:  "WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 SO.2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA?"  State v. Freijo, ___ So.2d ___ (Fla. 3d DCA, No. 3D07-1421, 7/23/2008) (on rehearing).

    See also Pena v. State, 980 So.2d 542, 545 (Fla. 4th DCA 2008) (2-year window in Green applies "to litigants who had not yet been made aware of pending removal proceedings or who had not yet made any attempt to have their pleas withdrawn").

sunEthics is produced by Tim Chinaris, and hosted by Faulkner University's Jones School of Law.  Please read our disclaimers.  Search our site, or view previously posted summaries using our SUBJECT INDEX.  © 2008