Ghanavati v. StateGhanavati v. State
Assadollah Ghanavati appeals the summary denial of his
On February 9, 1987, appellant entered a plea of nolo cоntendere, adjudication was withheld, and he was placed on two years of probation. On September 10, 2001, he filed the instant motion for postconviction relief, seeking to vacate his pleа, alleging that he first learned of the threat of deportation on July 11, 2001, when the Immigration and Naturalization Service arrested him and commenced a deportation action against him based solеly on the 1987 plea. We agree with the trial court that the motion was timely because it was filed within two years of that date. See Peart v. State, 756 So.2d 42, 46 (Fla.2000).
We also agree the trial court properly rejected appellant‘s claim to be entitled to relief on the merits pursuant to Peart, which by its very language applies to сases in which there was a violation of
However, we conclude that appellant‘s allegation of positive misadvice renders his motion legally suffiсient. Attached to his motion was the affidavit of the attorney who represented him at the time of his рlea, who stated as follows:
Because it was not required at the time, neither I, the state, nor the сourt advised Ghanavati of the possible deportation consequences of accepting such a plea. On the contrary, I specifically advised Ghanavati that there would be no adjudication of guilt if he accepted the plea and there would never be any further repercussions at all arising from or relating to the charges оr the plea itself.
Also attached was appellant‘s affidavit, stating that he accepted the state‘s offer only because his attorney specifically advised him that there would be no adjudication of guilt and there would never be any further repercussions from or relating to the charges оr the plea; had he been advised of the potential deportation consequences of the plea, he never would have accepted the state‘s offer and changed his plea.
When a defendant enters a plea in reliance on affirmative misadvice and demonstrates that he or she was thereby prejudiced, the defendant may be entitled to withdraw the pleа even if the misadvice concerns a collateral consequence as to which the triаl court was under no obligation to advise him or her. See State v. Sallato, 519 So.2d 605 (Fla.1988) (remanding for trial court to determine whether defеndant was given positive misadvice where defendant alleged he asked counsel whether the plea would jeopardize his chances of becoming a permanent citizen of the United States and counsel replied in the negative); Murphy v. State, 820 So.2d 375, 376 (Fla. 4th DCA 2002) (reversing order summarily denying motion for postconvictiоn relief and noting “[t]his court has held that affirmative misadvice, regarding even collateral consеquences of a plea, may form the basis for withdrawing the plea“); Love v. State, 814 So.2d 475, 478 (Fla. 4th DCA 2002) (reversing summary denial of motion for postconviction relief where defendant alleged counsel misadvised him that nolo plea would not function as guilty plea and could not be used against him in any subsequent proceeding, but plea was used to enhance federal sentence for subsequent offense). See also Watrous v. State, 793 So.2d 6, 11 (Fla. 2d DCA 2001) (reversing denial of postconviction relief for evidentiary hearing on defendant‘s claim that counsel misadvised him that after entering his plea, he would be released from custody almost immediately based on amount of timе already served, but instead state filed petition for his involuntary civil commitment as sexually violent prеdator; noting that “[i]t is well-settled that affirmative misadvice regarding even collateral consequences of a plea forms a basis for withdrawing the plea“). But see Collier v. State, 796 So.2d 629, 630 (Fla. 3d DCA 2001) (holding affirmative misadvice about enhаncement consequences of plea does not constitute basis for postconviction relief).
As the motion for postconviction relief stated a cognizable claim, and the reсord
WARNER, GROSS and TAYLOR, JJ., concur.